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 A R G r M i: N T S 
 
 IX r.Kir \LK or 
 
 T H E U 1\ I T i: ] ) S T A T E S , 
 
 wnir 
 
 SLPpi.i:Mi:N'r axi> appeni>ix. 
 
 ruiosKNTij) To Tin; 
 
 COMMISSIOXERS l!NJ)HII TUB TREATY 
 
 RETWKKN 
 
 Cltl- AT BRITAIN AND THE UNITED STATES, 
 
 FOR THK 
 
 FFXAT. SKTTLlvUEXT OF TJIK CLAIMS 
 
 OF THE 
 
 HDDSON'S BAY AND PUUET'S SOUND AGRICULTDRAl COMPANIES. 
 
 C. Gushing, Counsel. 
 
 I 
 
 WASIIIXCJTON CITY: 
 
 M'CII-I, >V; WITIII-UOW, POINTERS AND HTEUEOTYPKRa. 
 
 1868. 
 

:\IEMORIAL OF THE HUDSON'S BAY COMPANY. 
 
 Brithh and Amcvionn Joint Cowmhs^ion on the ITufhons Bay 
 and ruiiet's Sound A(jrk'ultural CompanicH Claims. 
 
 To the Honorable the Commissioners: 
 
 The Governor and Conipai. ^ of Adventurers of Enrrland 
 trading into Iludsoji's ]i;iy, commonly called tlic Hudson's 
 Bay Compmiy, claimants, submit the following memorial and 
 statement of tlioir claims upon the United States ; and for 
 facts and considerations in support of such claims respectfully 
 declare : 
 
 That, in the year 1840, and for a great number of years pre- 
 vious thereto, the Hudson's ]]ay Company were in the free and 
 full enjoyment, for their own exclusive use and benefit, of cer- 
 tain rights, possessions, and property of great value, within 
 and upon the territory of the northwest coast of America 
 lying westward of the Rocky Mountains and south of the 4Dth 
 parallel of north latitude; such rights consisting as well in 
 extensive and valuable tracts of land, whereupon numerous 
 costly buildings and enclosures had been erected and other 
 improvements had been made, and then subsisted, as of a right 
 of trade which was virtually exclusive, and the right of the 
 free and open navigation of the river Columbia within the 
 said territory. 
 
 That the rights possessions, and property thus held and en- 
 joyed by the Hudson's Bay Company, had been acquired while 
 tlie said territory was in the ostensible possession and under 
 the snvoreignty and government of the Crown of Great Britain, 
 and the Compiiny held and enjoved the same with the knowleiUc 
 and consent, and under recognitions, both express and implied, 
 of the Crown of Great Britain, and by persons acting under its 
 authority. 
 
 That, by the treaty C( ucluded between Great Britain and the 
 
aimm 
 
 nBsssn 
 
 f< 
 
 United States of America on the 1 ')tli day of June, 1S4<I, while 
 the Iluilson's llay Company wore in tlie full and free possession 
 and enjoyment of tlieir said riixlits, it was in effect declared to 
 be desirable, for the future welfare of both countries, that the 
 state of doubt and uncertainty which had theretofore prevailed 
 respecting the sovereignty and rrovornment of the territory on 
 the northwest coast of America, lying westward of the Ivocky 
 Mountains, should be finally terminated by an amicable com- 
 promise of the rights mutually asserted l>y the two parties, 
 upon such terms of settlement as might be agreed upon ; and 
 thereupon, by article I, of the sai<l treaty, the line of boundary 
 to be thereafier observeil between the territories of Great 
 Britain and those of tiie United States of America, then in ques- 
 tion, was established by mutual compromise and agreement. 
 
 That, by article HI, of the said treaty, it was provided : That 
 in the future appropriation of the territory south of the 40th 
 parallel of north latitude, as provided in article I, of the sai<l 
 treaty, the possessory rights of the Hudson's Bay Company, and 
 of all JJritish subjects who might be already in the occu))ation of 
 land or other property lawfully acquired within the said terri- 
 tory, should be respected ; and by article II, of the same treaty, 
 it was further provided, that from the point at which the 40th. 
 parallel of north latitude should be found to intersect the great 
 northern branch of the Columbia river, the navi'fation of the 
 said branch should be free and open to the Hudson's Bay Com- 
 pany, and to all British subjects trading with the same, to the 
 point where the said branch meets the main stream of the Colum- 
 bia, and thence down the said main stream to the ocean, with free 
 access into and through the said river or rivers, it being under- 
 stood that all the usual portages along the line thus described 
 should in like manner be free and open. 
 
 That, under the settlement of the boundary line agreed u[)on 
 by the said treaty, and defined by the first article thereof, the 
 said territory, whereof the Hudson's Bay Company then had 
 the actual and exclusive control, possession, use, and enjoy- 
 ment as aforesaid, fell within and under the sovereignty and 
 Government of the United States ; and, under a just construc- 
 tion of the said treaty, and of the obligation therein assumeti, 
 
 i 
 
r> 
 
 S40, while 
 
 possession 
 ocI.'ivcmI to 
 ;, that the 
 prevailed 
 rritory on 
 .lie Uocky 
 jable com- 
 o parties, 
 ipon ; and 
 boun<lary 
 of Great 
 en in ques- 
 reement. 
 ded: That 
 f the 40th 
 d' the said 
 npany, and 
 3upation of 
 t:aid Terri- 
 imc treaty, 
 ;h the 40th. 
 ;t the i^reat 
 tion of the 
 5 Bay Coni- 
 ame, to the 
 thcColum- 
 n, with free 
 eing und or- 
 is described 
 
 igreed upon 
 thereof, the 
 y then liad 
 and en joy - 
 •eignty and 
 St construe- 
 in assumed, 
 
 that the possessory rights of the Hudson's Uuy (Joinpany 
 should be respected according to the true intent and meaiiinr-' 
 of tiic same, the United States became and were bound to up- 
 hold and maintain the said Company in the free, nndisturlied, 
 and continual occupancy, use, and enjoyment of ail the rights 
 possessions, and property then by them possessed and held, 
 and to j)rotect and indemnify them from aggression ami in- 
 juries, by or through any person acting, or elainiing to act, 
 under the authority or the laws of the United States, 
 
 That the rights Avhieh the United States were so held to re- 
 spect, and in the enjoyment of which they were bound to u]>- 
 hold and maintain the (,'ompany, consisted of: 
 
 Firxt. The free and undisturbed possession, use, and enjoy- 
 Tnent in perpetuity, as owners thereof, of all the ))Osts, estal)- 
 lishments, farms, and lands held and occupied by them for 
 purposes of culture or pasturage, or for the convenience of 
 trade, with all the buildings and other improvements there- 
 upon. 
 
 Sceoiullii. The right of trade in furs, peltries, and other ar- 
 ticles, within and upon the whole of the said territory, and the 
 right of cutting timber tiiereupon for sale and exportation. 
 
 Thu'iJIji. The right to the free and open navinration of the 
 Columbia river, from the point at which the 40tli j);irallel of 
 north latitude intersects the great northern branch of the said 
 river down to the ocean, with a like free and open use of the 
 portages along the said line. 
 
 That the said rights have not been respected accordin"- to 
 the terms of the said treaty and the obligation of the United 
 States resulting therefrom; hut, on the contrary, by and 
 through the aggressions and proceedings of persons aetini:, or 
 claiming to act, under the authority of the (jJovernment, or of 
 the laws of the I nited States, have been violated and restricted, 
 and in great part extinguished and destroyed; and the Com- 
 pany, by reas'^m of the said aggressions and proceedings, have 
 been compelled in many eases to relinquish the same. 
 
 That, by the treaty concluded on the Ust day of July, l-SfJ.'] 
 it was agreed that all questions between the United States 
 authorities on the one hand, and the Hudson's ]}ay Cornnanv 
 
 V 1 ^ 
 
■HWHU 
 
 JUMBHWWHm BHHBH 
 
 
 
 on the other, with respect to the possessory rights and claims 
 of the latter, should be settled hy tlio transfer of those ri;i;1it3 
 and claims to tlie(irovern!nent of the I iiitcd States for uu ade- 
 quate money consideration. 
 
 And the claimants now submit a d(>tailed statement and ^ ilu- 
 ation of the said rii^hts, severally, under their distinct heads 
 or classes; and of the claim of the ir-idson's Hay (yom))any 
 under and by virtue of tiie said treaty and of tho premises 
 herein set forth : 
 
 1. T-AND3 AND TRADTXC. KSTAr.TJSMKXT55. 
 
 1 
 
 The forts, posts, establishinonts, farms, pastures, and other 
 lands, witli the buildint^s and improvements therouf)on, held 
 and possessed within the said territory by the Hudson's ]>ay 
 C(tmpanj5^, for their own sob; use and benefit, at the time of 
 the said treaty of the l")th June, 1840, and for a long time 
 before, which had, in some instances, been acquired from prior 
 occupants, and, in others, had been erectcMl and made, and 
 orii^inally settled and oecupieil, by the Company, were as 
 follows : 
 
 The post of Vancouver, so called, C(nisistin<i; of a sto(d<aded 
 fort, with dwelling-houses, store-houses, school-houses, houses 
 for servants, shops, barns, and other outbuiblings, with a stock- 
 ade and bastions, erected at great cost, and of the value of (ifty- 
 five thousand poundssterling, ( i;")r),000;) other dwelling-houses 
 and granaries, dairies barns, stables, and farm-buildings appur- 
 tenant to the said post for the purposes of (arming and trade, 
 built at various points near to the main ])ost at Vancouver, and on 
 Sauve's island, together with saw-mills and flouring-mills, forges, 
 workshops, and store-houses, all erected at a great cost at 
 the time, and of the value of I'orty-five thousand pounds ster- 
 ling, (€4'), 000;) the tract of land occupied, possessed, and 
 used by the Company for its |)OSt at Vancouver, including its 
 stations, enclosed and cultivated fields, and th(; j)asturage for 
 its cattle, horses, and sheep, extending in front along the 
 bank of the Columbia river about twenty-five miles, and ba(d<- 
 ward from the said river about ten miles; and Menzios' island, 
 
 I [\ I 
 
UBnDMB|UailH 
 
 and claims 
 
 hoso vi<i;1it3 
 for nil adc- 
 
 t and ^ ilu- 
 
 iiict he. ids 
 
 (yojujiany 
 
 premises 
 
 and other 
 iipon, licld 
 Ison's ]>ay 
 he time of 
 lon<^ time 
 from prior 
 made, and 
 y, were as 
 
 stockaded 
 ises, houses 
 til a stock- 
 lue of (ifty- 
 linii-housos 
 ings appur- 
 
 and trade, 
 iver,and ou 
 lills, forges, 
 L'at cost at 
 ounds ster- 
 iessed, and 
 (duding its 
 stitrage for 
 
 along the 
 , and I)a(dv- 
 ies' island, 
 
 so-called, occupied and used for pasturage; these tracts of 
 land, with the agricultural improvements made thereupon, at 
 a great cost, were at the time of the said treaty, of the value 
 of seventy-live thousand pounds sterling, ( C7.'».0(l(l. ) 
 
 '^riie said several sums, making together the entire sutn of 
 one hundred and seventy-five thousand pounds sterlin*'-, 
 (i;l7o,()00,) equal to eight hundred and lifty-onc thousand six 
 hundred and sixty-six dollars and sixty-seven cents, (iircSr)!,- 
 »j»i») ()7,) the claimants aver to bo the value of the fort, build- 
 ings, lands, and establishment, at and near Vancouver and on 
 Sauve's island, which they are entitled to claim and receive for 
 the same. 
 
 A large portion of the land thus occupied, possessed, and 
 used, has, since the loth day of June, l.S4(;, been taken from 
 the possession of the Company by American settlers claiming 
 under the land-laws of the United States, and the Company 
 was dispossessed of the fort and establishmetit at Vancouver, 
 and the land near thereto, by the orders of the military ofiicers 
 of the United States, in the year 18G0. 
 
 The post at Cham ro kg, consisting of one dwelling-house, one 
 granary, and outbuildings, all of the value of three thousand 
 pounds sterling, (i;;J,OUO;) and of the enclosed land of the 
 value of two hundred pounds sterling, (£200;) and, in addi- 
 tion, certain town lots in the town of Champoeg, purchased of 
 American settlers, of the value of two hundred pounds ster- 
 ling, (£200;) making together the entire sum of three thou- 
 sand four hundred pounds sterling, (£0,400,) e(iual to sixteen 
 thousand five hundred and forty-six dollars and sixty-seven 
 cents, (Sl(j,o4<J 07.) 
 
 The post at the mouth of the Cowlitz uiveu, consisting of 
 dwelling-house, granaries, and outbuildings, erected by the 
 Company, of the value of four hundred pounds sterling, (£4<)0;) 
 and the land occupied and used by them, of the value of one 
 hundred pounds sterling, (i;lO0 ;) making together the entire 
 sum of five hundred pounds sterling, (£500,) equal to two 
 thousand four hundred and thirty-three dollars and thirty- 
 three cents, ($2,438 33.) 
 
 The post at Fort George, commonly called Astoria, con- 
 
8 
 
 ' i 
 
 I '' 
 
 
 'I 
 if 
 
 felstinf^ of (hvoH'mg-liousos, storo-Iiouses, ami OMtl)uil(liiia;s, ac- 
 quircil by tlic (.)onip;iiiy from tlio prioi* occupants, of tlio cost 
 and value of scvon IiuiuIihmI and fifty pounds sterling, (€7o0;) 
 und two acres of land whereupon the said post is built, and 
 thereto appertaining, possessed and used by the (.'onipany, and 
 be'.ig of the value uf one hundred pounds sterling, (Xl<)();) 
 makiuL!; toi^ether the entire sum of ei;:'iit humlred and fifty 
 pounds sterling, ( €S50,j equal to four thousand one hundred 
 and thirty-six dollars and sixty-seven cents, ($4, loll (37.) 
 
 This post was taken possession of in 1849-50 by the officers 
 of the Uniteil States, 
 
 The postal Capk Disappointment, consisting of a dwelling- 
 house and store erected by the Company, of the value of ono 
 thousand pounds sterling, (.€1,000;) and the land appertain- 
 ing to the post occupied, used, and possessed by them, being 
 one mile S((uare, and of the value of two thousand pounds 
 sterling, (X2,000 ;) making together the entire sum of tnree 
 thousand pounds sterling, (.€3,000,) equal to fou^ ;een thou- 
 sand six hundred dollars, ($14,000.) 
 
 The last-mentioned land, or a portion of it, since the date 
 of the said treaty, was taken possession of by the officers of 
 the Uu ed States for a light-house or other public purpose. 
 
 The post at Chinook, or Pillar Kock, a fishing station, con- 
 sisting of a curing-house erected by the Company, of the cost 
 and value of two hundred pounds sterling, ()iil200;) and the 
 land used and occupied by them for said station, of the value 
 of one hundred pounds sterling, (=C100;) making together the 
 entire sum of three hundred pounds sterling, (£'MH),) equal to 
 one thousand four hundred and sixty dollars, ($1,4(30.) 
 
 The post at UaipQ(JA, consisting of dwelling-house, barn, 
 stables, and outbuildings, erected by the Company, of the cost 
 and value of three thousand pounds sterling, (i^S, 000;) and the 
 land used and occupied by them for farms and pasturage, being 
 a mile square in extent, a portion of which was fenced and 
 cultivated, all of the value of two thousand pounds sterling, 
 {Jj'2,000;) making together the entire sum of five thousand 
 pounds sterling, (iiO,000;) equal to twenty-four thousand three 
 
 ■1i 
 
9 
 
 liMiiijis, ac- 
 of the cost 
 iiig, ( CToO;) 
 s built, ami 
 mipany. and 
 iiig, (il<M);) 
 cd and fifty 
 )iic hundred 
 
 i;'.i; 07.) 
 
 f the ofViccrs 
 
 fa dwcUing- 
 raluo of ono 
 d appcrtain- 
 tlicm, being 
 sand pounds 
 mm of tnvoe 
 Uiieeu thou- 
 
 nce tho date 
 he olTiccrs of 
 ic purpose, 
 station, con- 
 y, of the cost 
 00:) and tho 
 , of tho value 
 ; together tho 
 500,) equal to 
 l,4G0.) 
 
 ;-house, barn, 
 y, of the cost 
 000;) and tho 
 sturage, being 
 LS fenced and 
 unds sterling, 
 five thousand 
 housand three 
 
 ol th 
 
 liuudrc'l and lliirty-tliroe «loll;irs jiud tliirtv-tlii-(>o cents, 
 /<.) I •'•1' •>•» , 
 
 (^"^-4. •>■)■> -fj. I 
 
 The wiiole of this l.isl-inentioned land is ikav occupied by 
 an Aniri'iciiii setrh.T, elaiming to hold the sauuj under tho laws 
 'lilted St;it(.'S. 
 The post of Xi:/,-l*i;ii('K,s, eommonly Ciilled \V;ill;i-\Valln, 
 consisting of two dwelling-houses and servants' houses, store- 
 houses, ami other buildings and outbuildings, walls and bas- 
 tions, nil built Iiy tlu; ('onipaiiy. of ailobe brick, and of tho 
 cost and value of three tlioii>and two hundred nouinls sterliti". 
 ( £-J,:^Oi) ; I the land on the Columbia river oceu|)ied and used 
 as belonging to the -aid post, and also the land along tho 
 bank of the said river \\>r.] fur the lauding of the Company, 
 of the value of teu tliousand poundi sterling, ( t:li»,(ji)0 ;) tho 
 lau'U siin'oiiiiding tli fort, used as pasturage, of the value of 
 two ihousiind ])o'imus sterling, (C^.OOO:) the farm near tho 
 ])e,-it, beii'.g of some tliivty 'cres, moi'c or less, in extent, of 
 the value of one tlious'ind live hundred pounds sterliii", 
 (€1,.0U1);) making togcthe; the eritiri! sum of sixteen thou- 
 sand seven bun li'cd pounds sterling, ( .t'lG.TOO;) equal to eighty- 
 one thousand two hun<lred and seventy-three dollars and 
 tbirty-tiiree cents, (.'ii><Sl,278 oo.) 
 
 This post and the lands were abandoned by the servants of 
 the Company binder the orders of ihe I'niteil States authori- 
 ties ill Is.jo. 
 
 The post at l<\)rt Hall, consisting of houses, shops, stores, 
 mills, aiid outbuildings, horse-parks and walls, all of adobe 
 brick, and of the value of throe thousand j)ounds sterliii", 
 (.£3,000;) the lands (.'iiclosed and cultivated, of the value of 
 one thousand pounds sterling, ( Cl.OOO;) and the lands occu- 
 pied and used for the pasturage of horses and cattle, of <n'eat 
 extent, and of the value of one thousand pounds sterling, 
 (£1,01)0;) making together the entire sum of five thousand 
 pounds sterling, (.£.'), 0<>0;) equal to twenty-four thousand three 
 nundre<l ant. thirty-three dollars and thirty-three cents, 
 
 This post was necessarily abandoned by the Company on 
 
 •1 .M 
 
. frr 
 
 msnaammmamm 
 
 } Kl 
 
 10 
 
 I \l 
 
 • i 
 1 1 
 
 i f i 
 
 ■ : 
 
 ^ 
 
 account of hostilities between the United States antl the In- 
 dian tribes in 18o(). 
 
 The post at IjOISi';, consisting of houses and ouihouscs, hnild- 
 ings, wall and bastions, and liorsc-itavks, all built u? adobo 
 brick, and of the cost and value of one thousand five hundred 
 pounds sterling, (£l,r>00;) about three miles square of land 
 around the post, used ainl occupied by the Company for iho 
 pur))ose of agriculture and pasturiig(\ all of tlic value of two 
 thousand pounds sterling, (C2, <)(•():) making together the en- 
 tire sum of three thousand five hundred pounds sterling, 
 (^3,000;) equal to seventeen thousand iind thirty-tliree dol- 
 lars and thirty-three CL-nts, (?^17.0o0 C-1.) 
 
 This post was necessarily aba-nihjned by the CoU)pany in 
 consequence of the hostilities between the United States and 
 the Indian tribes of ISf'ji. 
 
 The post at Okanagax, consisting of dweirmgdu)uses, ser- 
 vants' houses, store-houses, outbuildings, all of ad)be, stock- 
 ade and bastions, erected by the Company, and of the value 
 of two thousand five hundred pounds sterli' •• ( l'2,oU(>;) thirty 
 acres of land at the fort, used, occupied, and cultivated by 
 the Company, of the value of one thousand p(junds sterling, 
 (,£1,000;) and near and belonging thereto, othur lands for tlie 
 pasturage of herds of horses, of the value of five hundred 
 pounds sterling, £500;) making tog(^ther the entire sum of 
 four thousand ])Ounds sterling, ( C4, 000;) equal to nineteen 
 thousand four hundred and sixty-six dollars and sixty-seven 
 cents (8lO,oOG 07.) 
 
 The post at CoLA'iLi;, consisting of dwellingdiouses, servants' 
 houses, shops, stores, outbuildings, stables, barns, yards, stock- 
 ades and bastions, flouring-mills and appurtenances, all ei'ccted 
 by the Company, and of the cost and value of ten thousaiul 
 pounds sterling, (£10,000;) three hundred and fifty acres of hind 
 occupied and used and cultivated as farm-land, and about ji^e 
 m.iles scjuare of land occupied and used for pastunige of their 
 cattle and horses, of the value of five thousand pounds ster- 
 ling. (£5,000;) the White Mud farm, (ap))urtenant to this j)o-t.) 
 with a house, barn and stable, store and oulbuildings, erected 
 upon it by the Company, of the cost and value of one thou- 
 
 s I 
 
11 
 
 anil the In- 
 
 »uscs, builtl- 
 It of lulobo 
 ivo IuumUhmI 
 Kive of laud 
 d;iuv for llio 
 ,'aluc of two 
 ;tlicr the cn- 
 iJs stei'lin;,', 
 y-lhrce dol- 
 
 Coinpany in 
 nl Slates and 
 
 i<--l>()uscs, sev- 
 udtbo, stock- 
 of the value 
 J.rxJO;) thirty 
 cultivated by 
 inids stevlin,!!, 
 lanil> for ilic 
 five hundred 
 ■ niiro sum of 
 to niueteeu 
 A sixty-seven 
 
 uses, servants' 
 ,, yards, stock- 
 ces, all eroded 
 ten thousand 
 ty acres of laud 
 •and about Ji^o 
 turage of their 
 ,1 pounds stcr- 
 ,it to this post.) 
 Mings, erected 
 ot one thou- 
 
 ?nnd pounds sterling:, ( €1,000;) the land used and occupied 
 as a farm, thirty acres of extent, and of the value of five 
 huinli'cd pounds stcrlin,Lr, (€")0t):) nialcin/jj to^^i'liii-r the o'l- 
 tire sum of sixteen thousand five liui.dred [)0U:ids sterlin.]:^, 
 (ClOjtJ'tO;) equal to eif^hty thousand three hundred dollars, 
 (i?80,30O.) 
 
 Till' post at IvooTANAFs, consi'^tin lc of houses and stores 
 erected by the Company, of the co'^tand value of five hundred 
 ]")Ounds sterling:, f l'^"*"*;) the; land oecu])ied and used for tlic 
 post, ;ind near thereto, of small extent, of tlie value of five 
 hundred pminds sterling, ( t-lOO ; > nnikinir togethe!" the entire 
 su.m of one tiiousands poumls sterling, (1^1,000:) equal to four 
 thousand eight liundrMl and sixty-six dolhirs and sixty-seven 
 cents, (S4.8()(; 07.) 
 
 Tlic ))ost at l'r-AT-lli:Ans, consisting of dwelling-houses and 
 stores, anil of a small piece of land enclosed as a horse-yard, of 
 the value of six hundred pounds steidiog. (4!i)0();) equal to two 
 thousand nine hundred and twenty dollars, (."^12,020.) 
 
 All tiiese jiosts were established and maintained for the 
 support of their servants, and of others in the emjdoymetit; 
 uf oi- trading with the Company, aiid were not. only iuilis- 
 peiisable fur carrying on their trade in tlie country south of 
 the -tiUh parallel of north latitude, but were also of great 
 value for the suppoi't of tludr posts and trade in the country 
 north of that iiaralUd. They were connected with and de- 
 pendent upon ea(di other, and were of gi'cater value to the 
 Company when used together. The fariiis and pasture-lands 
 were also of LTreat annual value. 
 
 It may bo added, that the discoveries of gold and other 
 minei'als, which have been made within a f(>\v years past upon 
 lands ^ithin the territoi'v occupied by the Company, prove 
 their value to lie much higher than any estimate whieh coubl 
 have been put upon them before their general mineral wealth 
 was known ; and although it is not intended to urge, this fact 
 as ;i distii'.ct ground of (d;iim, yet it is manifestly fair that ic 
 should not be witliout inlluonce in the assessment to Im- nnide 
 !)y the Commissioners. 
 
 The Company liavc been, as beforo stated, deprived of tlio 
 
! 
 
 fT 
 
 V [ 
 
 ^BBaaammmBmmmm 
 
 
 12 
 
 'A 
 
 I*! 
 
 I ; 
 
 ];, 
 
 I 
 
 I ' 
 
 possession of some of their posts and fjinns find other lands 
 by American settlers claiming under the land-hnvs of the 
 United States; of some by tiio action of tiie oflicers of tlio 
 United States; and of others by the iio.stilities between tlio 
 United States and Indian tribes ; Avhich s;iid tribes had, until 
 the treaty of the loth June, 18GG, been under tlie control of 
 and at peace with the said Company. 
 
 The privation of the annual profits and rents of these 
 farms and lancb;, and the occupation of thidr posts, and the 
 campellod ai)andontnent of the said f)osts ;ind farms and lands, 
 have caused to the Company damaf^^e and loss to an amount 
 exceeding fifry thousand pounds sterling, (i:">0,000.) 
 
 The value of the several forts, posts, establishments, farms, 
 pasturages and lands, with the buildings and improvements 
 thereon, amounts in all to the sum of two hundred and thirty- 
 five thousand three hundred and fifty pounds sterling, 
 (.£235,3r)0 ;) making, together A\:itli the sum of fifty thousand 
 pounds sterling (.£50,000) for loss sufi'ered as :-.tated, the entire 
 sum of two hundred and ci2;htv-five thousand tliroo iiundred 
 and fifty pounds sterling, (285, -joO;) equal to one million three 
 hundred and eigbtv-cight thousand seven hundred ami three 
 dollars and thirty-three cents, (1,388,708 So.) 
 
 Which the Hudson's Bay Company claim and are entitled 
 to receive from the United States. 
 
 \< 
 
 
 
 
 11. RIGHT OF TKADE. 
 
 The chief business of the Hudson's Bay Companj' in the 
 year 184G, and for a great number of years before, was, and 
 now is, the trade with Indian tribes in furs, peltries, and 
 other articles. It was a trade of great n)agnitude, carried ou 
 in Oregon over a wide range of countr}', and involved an ex- 
 tensive foreign commerce. Large sums of moiicy were an- 
 nually expended in it, and the returns were highly profitable 
 ami important to the general prosperity of the Company. 
 
 For the projjcr and beneficial currying on of that trade, the 
 Company required, not only to hold and possess the posts, es- 
 tablishments, farms, and other lauds already described, but 
 
 mn 
 
13 
 
 itlier lands 
 ;iAv?; of tlie 
 -er.s of tlic 
 etwcon the 
 s liiul, until 
 ; control of 
 
 ts nf tlii'so 
 ;ts, llMil the 
 s junl hinds, 
 an iiniount 
 0.) 
 
 cuts, farms, 
 i|)rov(Miients 
 1 and thirty- 
 ds sterling, 
 -[J thousand 
 m1, the entire 
 reo hundred 
 million three 
 (1 and three 
 
 I are entitled 
 
 ipany in the 
 'ore, Avas, and 
 peltries, and 
 Ic, carried ou 
 v'olved an ex- 
 11 ey were an- 
 hly profitable 
 Coun)any. 
 that trade, the 
 5 the posts, cs- 
 described, but 
 
 also to have the control, possession, and use of extensive tracts 
 of country ; and tlu^y had in fact, at aiid iKdurt; the date of 
 the treaty of the loth June, 184G, in their ooiitrol, possession, 
 and use, for such })urpo.ses, a lar^ie port' m of the country 
 lyinc, as hereinbefore mentioned, on the nortlnvest coast of 
 America, to the westward of the Rocky ]S[ouiitains. south of 
 the 4lUh parallel of north latitude, and known as Orciion. 
 And they had therein and thereupon a ri;j;]it of ti'ade which 
 was virtually exclusive. 
 
 The profits derived from their said trade, before and in the 
 year 1^40, exceeded in each year the sum of seven thousand 
 pounds sterling. 
 
 vVnd such right of trade, and the control, possession, and 
 use of the said territory for the purposes tliereof, independ- 
 ently of their foreign commerce and the sale of timber, ex- 
 ceeded in total value the sum of two hundred thousand pounds 
 sterling. 
 
 rnder the settlement of the boundary line by the treaty of 
 the I'Uh June, 1S4U, the said territory fell under the sov„ 
 ereignty and government of the United States ; and by reason 
 thereof, and of the acts and proceedings had and taken under 
 and by color of the authority and of the laws of the United 
 States, the control, possession, and use of the said territory 
 by the Hudson's Bay Company, for the purposes of their trade, 
 and their rights in the exercise and carrying on of their trade 
 in furs, peltri(!s, and other articles, as W(dl as their trade in 
 the shipment ami sale of timber and their foreign commerce, 
 were restricted and denied, and in efi'ect wliolly taken away 
 and lost; and for their said rights, and the forced relinquish- 
 ment and loss thereof, they claim the said sum of two hundred 
 thousand pounds sterling, (.€200, 000 ;) equal to nine hundred 
 and seventy-three thousand three hundred and thirtv-threo 
 dollars and thirty-three cents, (.Sl>7o,.'3:}o o'^>.} 
 
 III. NAVICATIUX OF TUE rULCMOlA UIVKIl. 
 
 The Hudson's Bay Company aver that, under the treaty of 
 the loth June, lH4t], by article IV of that treaty, they have 
 
rr 
 
 wntm 
 
 "( : 
 
 14 
 
 I i 
 
 • '( 
 
 . (i 
 
 
 
 I' • 
 I 
 
 ' I 
 
 I w 
 
 a ri^rlit- to the froo and open n:ivi2;:itif)n of tlio north br.inch of 
 th(> (ViluTi)l'ia vivoi'. from tiio jioiiii at \vliicli the samo is inter- 
 sected hv the 4'Jtli paralhd oi' noiih latitude to the in.ain stre;iiii, 
 ar.d thence ti) the ocean, with free access ami passage into and 
 tlirou:j;h the saiil river oi- I'ivei's ; and that JJritish subjects trad- 
 inrf witli them have an equal ri^htof iiavit^ation ; and that, to tlio 
 Company, and to those thus tradin^j; with tliem, the portages of 
 the said river or rivers along the lines thus described ought to 
 be, and of right are, free and open. 
 
 The right thus to navigati; tlie said river or rivers, and to 
 pass unobstructed over their portages, was and is of gi'cat value 
 to the (Company, and is also of great and increasing ])olitical 
 anil national value to the I nited States : and i'or its relinijuish- 
 nient and transfer the (^)mjlany claim and are entitl(>d to re- 
 ceive the sum of three hundred thousand j;ounds sterling, 
 (i;oUO,0(Kj,) equal to one million four hundred and sixty thous- 
 and dolli.rs. {.":>l,4(;o,000.) 
 
 In addition to the special statements hereinbefore contained, 
 the Hudson's Ibiy Company submit that, throughout a lung 
 series of years, they (wpendod largo sums of mone}' and de- 
 voted much labor and time in efforts to bring the native ])opu- 
 lation into such a condition that safe and profitable relations, 
 in re:rard to trade and general intercourse, couM be c^' a hlisluMJ 
 with them. The exploration of the country, the expenditure 
 for labor, iiiul oi' the parties engaged, the opening of roads, 
 the stroni: force roquircil as a protection against the Indians, 
 their conciliation brought al)out, sometimes by a resort to for- 
 cible measures, but chieflv bv liberal dealini:, (dfected a irreat 
 change in the (Condition of tiie counti-y, vqv. . ing it fit for 
 immediate settlement. These were substantial benefits to the 
 Governmeiit and people of the United States, under wdiose 
 sovereignty this territory fell, and (-ould not have been secured 
 without a very large outlay. It is, of course, impossible to 
 give any minute -(letails of expenditures of this (dass, and of 
 the advantages whicli th(! liuited States have derived from 
 them; but the justice of extending to tin; Hudson's Day Com- 
 pany liberal compensation, foumledon these considerations, i-- 
 
 
■\r> 
 
 orth branch of 
 
 samo is iutev- 
 e main stream, 
 jssagc into and 
 1 pulijocts trad- 
 antl tiiat, totho 
 the ijorta^iios of 
 cribcMl ought to 
 
 rivers, and to 
 •; of great value 
 'a sing ])olitical 
 r its reVuKiuisli- 
 ) entitU'd to re- 
 )unds sterling, 
 md sixty thous- 
 
 'fore contained, 
 oughout a long 
 money and de- 
 lie native jinpu- 
 itahle relations, 
 Id !)(' (/siahlislKMl 
 the expenditure 
 le'ning of roads, 
 list tlie Indians, 
 ,' a resort to for- 
 elfected a great 
 ; . ing it fit for 
 il benefits to the 
 es, under \vliose 
 ave been secured 
 se, impossible to 
 his class, and of 
 ive derived from 
 dson's Bay Corn- 
 considerations, i- 
 
 too apjiarent to allow of any reasonable liesitatioii in admit- 
 ting it. 
 
 It is obvious tliat. of tlie tlirce classes of ebiims set forth 
 ill the foregoing mciaoriul, tlie first only cnnsi.-ts of |iarticii- 
 lars wliicji, ioi tiieir natiir<\ admit of direct pnxd' (d" value; 
 but witli respect even to these, tlie honorable the Commissioners 
 are c;i mostly requested to notice, that circumstnnces w Inch the 
 claimants could in no dei^rei^ prevent or contrul, have "reatlv 
 I imiiaired the means of iirodiieing such pi-ool in the positive 
 and complfte form wiiiidi, oiherwise, tliey would have been 
 enalded to do. Among these circumstances may be specified 
 the ag^-r(\ssive acts and the general conduct of American 
 citizens, and id' persons aeiiug un.Kjr the authority of the 
 United States, commencing sliortiy after he l-uli June, 1840, 
 and contiiiiiiiig from year to year, by which tiie rights of the 
 ch-iii:iaiits under that treaty were violated and denied, and 
 their [iroperty and jn)Ssessioiis were, in some instances, usur[)ed 
 and taken from tiiem, am!, in others, were necessarily aban- 
 doned. This course of conduct was, perhaps, to be expectt't', 
 from 'lie anomalous position in wliieh the Company were 
 piacc'I — a foreign corporation (>xercisiiig a (iinisi sovereignty 
 and exclusive rights over territory tr;insferred to a Power 
 viiose policy ill dealing with sueh territory was diametrically 
 Ojiposed to that which the Company jjursiied, and I'rom which 
 they derived their j.rofits. But however this may be, it is an 
 undouhted eonsequenee to the Company tiiat their rights and 
 possessions have been t ii(>r(d)V made id' comparatively little 
 value, and tiie dillieulty of obtaining evidence upon them has 
 Iceii rendered very great. This diiliculty has been essentially 
 increased by the lapse of time since the claims first arose. 
 A delay of seventeen yi^ars intervened, during which the 
 U.iited States, while faildig to cause the rights of the lliid- 
 80:1 s iJ.iy ('ompany to lie respected, continued to refuse any 
 S!i: i-taetory settlement of their demands. The inevitable 
 eflect cd' this delay, now exttoided to nearly twenty years, 
 h;i> heen to remove l)y death, or otherwise, the greater number 
 of important witnesses, and to weaken the evidence which is 
 Still a\ailable, both by the remoteness, in point of time, of 
 
4 
 
 V 
 
 ' 1 , . 
 
 I I 
 
 M ] 
 
 10 
 
 tlic facts to be established, and by reason of tbo natural de- 
 cay nr of the disnppearaiK'c of inucli wliicli CDiistituto'l the 
 value of tlie riuiits and possessions i'nr \vliicli the present 
 claims are made. 
 
 With respect to the second and third classes of claims set 
 forth, the claimants solicit the attention df the honoralile the 
 Commissioners to the fact before alluded to, that they arc of a 
 nature which does not admit of a formal ;nid precise valuation 
 by testimony. Consisting ns they do of important rights of 
 trade, and of other rights of a public and nard'otial character, 
 tliev are manifestly of great value. ]>ut the estimation to be 
 put upon them, and the amount of the money consideration to 
 be paid for their relinquishment and transfer, must be settled 
 by the judguient of the Commissioners, founded upon their 
 own experience and knowledge, aided by public documents 
 and the recorded opinions of statesmen and writers of au- 
 thority, anil by such general estimates umler oath as it may 
 be possible to obtain. 
 
 The claimants have made the foregoing statement and ob- 
 servations with respect to evidence for the purpose of urging 
 for the serious consideration of the honorable the Commis- 
 sioners, that in their examination and decision of the present 
 claims, they ought not to be restrained by the rules Avhich are 
 observed in the trial of ordinary issues in courts of law. 
 Those rules, under the circumstances and for the reasons above 
 declared, the claimants contend, should be liberally modified 
 and relaxed in the present case: and they respectfully, yet 
 formally and solemnly, protest, that a strict application of 
 them, in the consideration of their claim, would be unreason- 
 able and unjust. 
 
 In C(jnclusion, the Hudson's Bay Company submit that, 
 upon the facts and circumstances, and for the reasons and 
 considerations herein set forth, they are entitled to claim and 
 receive from the United States the several sums here following: 
 
 .Fir.sf. For their forts, posts, establishments, farms, pastur- 
 age, and other lands, with tiie buildings and improvements 
 thereon, as hereinbefore set forth, the sura of two hundred 
 
 m 
 
^■HmHIHUh 
 
 17 
 
 (^ natural dc- 
 
 iistituted the 
 
 the presGiit 
 
 of claims sot 
 ioiior;il)le the 
 tlicv arc of a 
 jisc valuation 
 taut ri;^lits of 
 iKil chai-acter, 
 /luuition to be 
 nsiileration to 
 lUst be settled 
 2(1 upon their 
 lie documents 
 writers of au- 
 3ath as it may 
 
 ement and ob- 
 posc of urging 
 e the Counnis- 
 
 of the present 
 •ules which are 
 courts of law. 
 e reasons above 
 erally modified 
 ^spcctfully, yet 
 
 applieation of 
 Id be uurcason- 
 
 y submit that, 
 he reasons and 
 ed to claim and 
 ; here following: 
 5, farms, pastur- 
 1 improvements 
 of two hundred 
 
 and eighty-five thousand three hundred and fifty nounds ster- 
 ling, (C2S5, :]:;().) 
 
 ' Sccniidlii. For the right of trade, as hereinbefore set forth, 
 
 . the sum of two hundred thousand pound sterling, ( CiiOCUUO.) 
 i Thlrdlif. For the right of tlio free navigation of the Colum- 
 
 bia river, as hereinbefore set forth, the sum of three hundred 
 thousand pounds sterling, (£300,000.) 
 i The said several sums making together the entire sum of 
 seven hundred and eighty-five thousand three hundred and 
 fifty pounds sterling, (i:785,350,) equal to three million eight 
 hundred and twenty-two thousand and thirty-six dollars and 
 sixty-seven cents, (,$3,822,030 (JT.) 
 
 And the Hudson's Bay Company ask that the honorable the 
 Commissioners will, after due examination, maintain the said 
 claim as just and reasonable, and will decide that the United 
 States ought to pay to the Company, in discharge of their said 
 claims and rights, and for the transfer of them, the said sum of 
 seven hundred and eighty-five thousand three hundred and 
 fifty pounds, in sterling money of Great Britain, equal to 
 . three million eight hundred and twenty-two thousand and 
 thirty-six dollars and sixty-seven cents in gold, to be paid at 
 the time and in the manner provided by the said treaty of the 
 1st July, 18(53. 
 
 And the claimants declare that, for the said sum of money, 
 or for such otlier sum as the honorable the Commissioners may 
 justly award, they are ready and villing to transfer to the 
 United States all their rights and claims according to the 
 terms of the said two treaties. 
 
 Ciis. D. Day, 
 
 Counsel for the Iludisoiis Bay Company. 
 Dated April 8, 1805. 
 
 
 3 M 
 
\\ 
 
 ' li ' 
 
 . ,' 
 
 ■ f if 
 
 1 1 
 
 i 
 
 ' iM 
 
 fil 
 
 3IEM0RIAL OF THE I'UfiET'S SOUND AIIICULTUIIAL COMPANY, 
 
 liri/ish ami American Joint CdininixHioii on the Ifmhcniii .I>ay 
 and .l*u<ji't'H Sound A<jriviiUu)'al (JinnpanuH Claims. 
 
 To the Honorable the Commfssioxers: 
 
 The Pnget's Sound Agricultural Company submit the follow- 
 ing memorial and statement of their claims upon the United 
 States; and for facts and considerations in support of such 
 claims, respectfully declare: 
 
 That in the year 1(S40, and for many years previous thereto, 
 the Puget's Sound Agricultural Company were, and since have 
 been, engaged in the business of agriculture and farming, and 
 of breeding and raising live-stock ; ajid for the purposes and 
 in the course of carr^nng on their said business, they acquired 
 and became possessed as owners thereof, before the said time, 
 of certain farms and extensive tracts of land in the territory 
 lying on the northwest coast of America to the south of the 
 49tli parallel of north latitude and north of the Columbia 
 river. 
 
 That, upon portions of their said lands, there were erected 
 and made by them buildings, enclosures, :>nd other improve- 
 ments of great cost and value; and the Company also owned 
 and possessed, and pastured and fed upon the said lands, their 
 said live-stock, consisting of large and valuable herds of cat- 
 tle and horses, and ilocks of sheep; from the sale and disposal 
 of which, and of the other productions of their said farms and 
 land, they received great annual returns and profit. 
 
 That by article IV of the treaty concluded between the 
 United States of America and (rreat Britain, under date of 
 the 15th day of June, 184G, it was j)rovided: that the farms, 
 lands, and other projierty of every description belonging to 
 the Puget's Sound Agricultural Company, on the north side <it' 
 the Columbia river, should be confirmed to the said Company: 
 but that in case the situation of those farms and lands shouKl 
 
 8 
 8 
 
 c 
 a 
 
 li i 
 
10 
 
 (Jldims. 
 
 i 
 
 mit tlio foUo^Y- 
 ,on the United 
 ipport of such 
 
 cviousthcveto, 
 and since liavc 
 ,d fanning, and 
 le purposes and 
 J, they acquired 
 c the said time, 
 in the territory 
 he south of the 
 the Columbia 
 
 JVC were erected 
 other improvc- 
 lany also owned 
 
 said Umds, their 
 jle herds of cat- 
 ale and disposal 
 r said farms and 
 profit. 
 
 cd between the 
 n, under date of 
 that the farms, 
 ion belonging to 
 the north side nl 
 lesaid Company: 
 and lands should 
 
 be considered by the United States to be of public and politi- 
 cal importance, and the United States (jovcrnincnt should 
 siujuify a desire to olitain possession of tlio whole, or of any 
 part thereof, the |)roi)ei-ty so rei|iiii'ed shonld be; transferred 
 to the said Governtnent, at a proper valuation, to be agreed 
 upon between the |)arties. 
 
 That the Government of the United States has not, at any 
 time, signified to the Company a desire tiiat any of the said 
 y)roperty should bo transferred to the said (Jovernment, at a 
 valuation as provided by the treaty, nor has anv transfer 
 thereof been made; but the Company have ever since con- 
 tinued to be the rigiitful owners of the said hinds, farms, and 
 other property, and entitled to the free and undisturbed pos. 
 session and enjoyment thereof. 
 
 That, by a convention concluded between the two Govern- 
 ments on the 1st day of July, I8G0, it was agreed that all 
 questions between the United States authorities on the one 
 haiul, and tiie Pugot's Sound Agricultural Company on the 
 other, with respect to tiie rights and claims of the latter, 
 Bhould be settled by the transfer of such rights and claims to 
 the Government of the Ignited States for an adequate money 
 consideration. 
 
 And the claimants aver that the riiihts and claims of the 
 Puget's Sound Agricultural Company, referred to and intended 
 in and bv the said convention, are their riy-hts and claims in 
 and upon the said huids, farms, and other property of every 
 description which they so held and possessed within the said 
 territory, and which, by reason of the said treaty of the 15th 
 Jnne, 184G, and according to tiie terms of the fourth article 
 thereof, llic United States became and were bound to confirm. 
 And of the said farms and other property, they now submit 
 to the honorable the Commissioners a detailed statement and 
 valuation, as follows: 
 
 First. Tlie tract of land at Nisqually, extending along the 
 shores of Puget's Sound, from the Nisqually river, on the one 
 aide, to the Pu-yal-lup river on the other, and back to the 
 coast-range of mountains, containing not less than two hundred 
 and sixty-one square miles, or one hundred and sixty-seven 
 
( I 
 
 20 
 
 I ; 
 
 >■ I 
 
 tliousand and forty acres ; of wliicli said tract of land a portion 
 is improved and under cultivation for farming ;ind agi-icultiire, 
 and tlie remaining portion thereof was occupied and used \>y 
 tlio Company for the grazing and pasturage of their cattle, 
 horses, and sheep, and I'or cutting wood and timher thereon, 
 and for other purposes connected with their business ; the whole 
 being of the viiluo of one hundred and sixty thousand pounds 
 sterling, ( Cl()0,0()') ;) the fort, bastions, houses, stores, barns, 
 shops, and outbuildings, with the fencing and enclosures at tho 
 main post and establishment, and the; houses, barns, outbuild- 
 ings, fencing, and enclosures at the other f)oints on the said 
 land, of the cost and value of four thousand pounds sterling, 
 (4,000;) these two sums making together tli(! entire sum of one 
 hundred and sixty-four thousand pounds sterling, ( ClOl, 000,) 
 equal to seven hundred and ninety-eight thousand one hundred 
 and thirty-tliree dollars and thirty-three cents, {.S70S, 103 Co.) 
 Scoondff/. The land and farm at the Cowlitz river, known 
 as the Cowlitz farm, consisting of three thousand five hun- 
 dred and seventy-two acres, more or less, of which upwards 
 of iift(!en hundred acres are improved and under cultivation 
 for farming and agricultural purposes, and the remaining por- 
 
 or 
 
 tion is used for cattle and sheep-ranges and pasturage, and t 
 other purposes connected with the business of tho said Com- 
 pany ; the said last-mentioned land being of the value of 
 twenty thousand pounds sterling, ( 1^20,000;) the establishment 
 and buildings of the Cowlitz farm, consisting of dwellinL'- 
 houses, saw-mills, stoi'cs, granaries, barns, stables, sheds, ami 
 niimeries, and of a great extent of fencing and enclosures, of 
 the value of six thousand pounds sterling (€0,000;) the saiii 
 two last-mentioned sums makinij to-fotlier the entire sum of 
 twenty-six thousand pounds sterling, ( C20,0()0,) equal to om 
 hundred and twenty-six thousand five hundred and thirty-tlirct 
 dollars and thirty-three cents {^V2{)j)P>Z 33.) 
 
 TJiinib/. 'i'he Company also owned and possessed live-stock 
 consisting of three thousand one hundred head of neat catth 
 three hundred and fifty horses, and five thousand three hu' 
 dred sheep, of the value of twenty-five thousand pounds st 
 ling, (-£2f),000;) which were pastured and fed on their s; 
 
 ei'- 
 
21 
 
 Df lainl ii portion 
 iind !i,:;ri(MiUiire, 
 lied nnd used l>y 
 
 of their cattle, 
 
 timber tliorcon, 
 siiioss; the wliolc 
 thousand pounds 
 cs, stores, barns, 
 
 enclosures at the 
 , burns, outbnild- 
 )oints on the said 
 1 pounds sterling, 
 
 entire sum of one 
 ,rling,(i:l(;i,00O,) 
 isand oiieliundred 
 ,ts,(>^708,103 33.) 
 iWt'A river, known 
 housand five hun- 
 
 of which upwards 
 1 under cultivation 
 the remaining por- 
 
 pasturage, and for 
 ,s of the said Com- 
 t of the value of 
 ,) the establishment 
 isting of dwelling- 
 , stables, sheds, and 
 (r and enclosures, of 
 "(£0,000:) the sain 
 r the entire sum oi 
 r>,000.,) equal to oiu 
 red and thirty-thrc 
 
 53.) 
 
 possessed live-stock 
 I head of neat cattle 
 thousand three hu!i 
 ousand pounds stov- 
 d fed on their sm 
 
 KtikIs before and at the time of the conclusion of tlic treaty 
 of tlic lotli June, 1S4(>, and afterwards, until t]i(> time of tlio 
 commission of the acts and injuries hereinafter mentioned, by 
 wliieli the greater part of the said live-stock was cither killed 
 or driven away, and entirely lost to the Company, within u 
 few years after the time of the said treaty. 
 
 And the claimants aver, that although at the time of the 
 conclusion of the treaty of the l")th dune, lS4l), and for a lon<' 
 time before, they held and possessed the said lands, farms, and 
 other property as owners tln.'reof, and tlie United States, by 
 the terms and according to the conventions contained in tin; 
 last treaty, undertook and were bound to confirm them in tho 
 same: yet the I'nited States failed to execute or grant to tho 
 said Company any formal title of confirmation (jf their said 
 lands, farms, and other f/roperty ; and by reason thereof, and 
 of tlie acts and proceedings of officers of the United States, 
 and of American citizens, and others assuming to act under 
 the authority of the laws or of the (Jovernmcnt of the United 
 States, the Company were deprived of the use and enjoyment 
 of a large portion of their lands, farms, and other property, 
 and of tho rents, fruits, and profits tiiereof ; their pasturage 
 was destroyed or taken from them ; iheir live-stock killed or 
 driven off and wholly lost to them ; and their entire business 
 broken up or rendered unprofitable. 
 
 And the claimants have, in consequence, suffered loss to the 
 amount of fifty thousand pounds sterling, ( C.">0,000,) equal to 
 two hundred and forty-three tliousand three hundred and 
 thirty-three dollars and thirty-four cents, (8243,333 34.) 
 
 It may be added, as indicative of the value of their property, 
 and in some degree of the nature and extent of the injuries 
 to whieli the company were exposed, that while they were 
 thus suffering from aggressions, and were disturbed in their pos- 
 session, as above stated, a portion of their lands was assessed, 
 for the purpose of taxation, at a value of S817,00<>; and they 
 were compelled to pay taxes thereupon from year to year, 
 and have actually paid for such taxes the sum of .Sl4,rj<J0. 
 
 In conclusion, the claimants submit to the honorable the 
 Commissioners, that liujv are entitled to claim and receive the 
 
i:h!Mii 
 
 : I : ;l 
 
 (I ^r' ' 
 
 II 
 
 Vf 
 
 iihii/ii: 
 
 T:i;! 
 
 i 
 
 22 
 
 fair value of thoir said funns and extensive tracts of land, and 
 a ju<t coinpcnsatjon for the capital exponildl in tlu; ae((nisition 
 and iuiprovcmcnt ut" tlicir said i)r()pei'ty, and in lliu linildi:i;:;s> 
 fort-i, mills, trading cstaMisliniunts, ami cMclosures ilicro- 
 on ; and, further, compensation for the loss of their live-s'oek, 
 and for other loss suffered by them in conse(iucnce of the aets 
 and proceedings hereinbefore complained of. And they ask 
 that, upon the facts and circumstances, and for the reasons 
 and considerations hereinbefore set forth, the honorable 
 tlie Commissioners will, after due examination, maintain 
 their claim as just and reasonable, and will decide that 
 the United Statics ought to pay to the said Company, in 
 satisfaction ami dischur^'e of their said riifhts and claims, and 
 as a proper valuation ami adequate money consideration for 
 the transfer and reliiKiuislunent of them, the several sums 
 hereinbefore snccifieil and now followiu'', that is to siiv: 
 
 For the farms ami land, w n the ijuildiiii's, forts, tradinj; 
 establishments, and iinprovcuients thereon, one hundred and 
 ninety thousand pounds sterling, (£liMJ,<)UO ;) for the ' iss of 
 tlie live-stock, and other loss suffered by them by reason of 
 tiie acts and proceedings hereinbefore complained of, fif'^y 
 thousand pounds sterling, (X'">0.O()(J;) making together the 
 entire sum of two hundreil and forty thousand pounds sterling, 
 money of Great Britain, (€240,000,) equal to the sum of 
 one million one hundred and siAty-ciii;ht thousand dollars, 
 (.':?1,1(J8,000,) to be puid in gold, at the time and in the manner 
 provided by the treaty of 1st July, 18(3;3. 
 
 iVnd the claimants declare that, for the said sum of money, 
 
 or for such other sum as the honorable the Commissioners may 
 
 justly award, they are read}'' and willing to transfer to the 
 
 United States all their rights and claims, according to the 
 
 terms of the said two treaties. 
 
 Ciis. D. Day, 
 Oiiniselfor Puget's /Sound Agr'l Companij. 
 
 Dated April 10, 18G5. 
 
 I 
 
 ; '•!', 
 
af 1(111(1, and 
 
 iKMjuisition 
 u lHiil<li:i,i;>*> 
 urcs tlicrc- 
 i' livc-.s*;ock, 
 ) of tho nets 
 11(1 lliey ask 
 
 tlic reasons 
 
 lionoi'al)le 
 
 II, niaintiiin 
 
 [Iccidc that 
 
 Jompaiiv, in 
 
 claims, and 
 Icralion for 
 overal sums 
 :o say: 
 )rts, trading 
 lundi'cd and 
 r the ' iss of 
 »y reason of 
 ned of, fifi-y 
 :ogcther the 
 lids sterling, 
 
 the sum of 
 and dollars, 
 n the manner 
 
 m of money, 
 ^sioners may 
 iisfer to the 
 •din^ to the 
 
 Day, 
 
 r'l Company/. 
 
 mim To AiiKxn ^iemiikial. 
 
 'I 
 
 1 Hi'ltixli (i)iil Aiinricdn Juint dnin/i/SKion on tin' lluihnn'H liai/ 
 iiinl /*ii(/('f's Sotonl Aijrlcnltnral CoinjxtnieH Claim. 
 
 Jriiisniucdi as it appears by the evidence of record that tlic 
 lands elainicd by the lliidson's Bay Coiiij)any, of each of the 
 posts (d' A'aiicoiivcr and C(dvile, greatly exceed in value tho 
 re>peetivL' amounts stated and claimed for them in the memo- 
 rial ill this cause filed, it is moved hy the counsel for the 
 claimants that, in or(lcr to equalize their claim with the proof, 
 thi'V be permitted to amend the statement of the value of the 
 said lands contained in their memorial to the effect and in the 
 manner following, that i.-, to say: 
 
 1. That an addition of .t'^'y.QOO sterling, equal to 8413,- 
 GGiJ (J(!, be made to their claim for the land at A'aiicouver, and 
 that such cliiim be taken and held to be for the sum of one 
 hundred and sixty thousand pounds sterling, equal to $778,- 
 GGO GO, instead of f^eventy-five thousand pounds sterling, e(tual 
 to !<oG">,OIJO. 
 
 2. That an addition of £0,500 sterling, equal to 8-lG,230 34, 
 be made to their claim for the land at Colvile and White Mud 
 farm, and thai such claim be taken and held to be for fifteen 
 thousand pounds sterling, equal to 873,000, instead of five 
 thim.-and five hundred pounds sterling, e(iual to 82G,77G GG. 
 
 And that, in conformity with such amendment, the state- 
 ment in the meuKvial of the aggregate value of the rights of 
 the claimants, and the conclusions by them therein taken, be 
 reformed and increased by adding thereto the said sum of 
 £85,000 sterling, ami the said sum of £0,500 sterling, making 
 together the sum of ninety-four thousand five hundred pounds 
 sterling, equal to four hundred and fifty-nine thousand nine 
 
fnr- 
 
 t: 
 
 ■4MMH 
 
 IMMUPililliS 
 
 
 I -ll 
 
 24 
 
 hundred dollars, and that the entire amount of their claim be 
 taken and licld to be the sum specified in the said statement 
 and conclusions, together witli the further sum of four hundred 
 and fifty thousand nine hundred dollars thereunto added. 
 
 Oils. D. Day, 
 Counsel for IL B. Co. 
 June 10, 18G8. 
 
 iii-!' 
 
 •t i 
 
 ,1 .;■,.... 
 
 ■ I 11::' v 
 
 r' ., 
 
 i|i 
 
 !iii;i:i:^, 
 
 I'iill 
 
 ^immmmm 
 
leir claim be 
 
 id statement 
 four iiiindi od 
 added. 
 [). Day, 
 //. IL Co. 
 
 OK 'I'lIK 
 
 HUDSON'S BAY COMPAIN Y. 
 
 I To the J/onor((b/e the Com/ui\s.slonrrs: — 
 
 - Tho claims of l!;o Hudson's Bay Coiiipaiiy no-aiiist tlio 
 United States -ire founded on tlie tliii-d article of tlie 
 treaty l)et\vecn Great Britain and the Tnited States, of 
 June loth, A. D. 1840, as follows: 
 
 Art, hi. In tlic future aj)i)ropriation of tlie territory 
 
 south of the forty-ninth parallel of north latitude, iis pro- 
 
 vuled in the first article of this treatv, tho jtossessorv 
 
 ri.o-hts of the Hudson's Bay Company, and of all ]}ritish 
 
 vsul)jects who may he already in the'occupation of land, 
 
 for other proj)erty, lawfully acciuired^ within the said ter- 
 
 iritory, shall he respected. 
 
 I And on the following clause of the Treatv of Julv 1st 
 418G3, namely: ' ^ . . » 
 
 I Art. I. And whereas it is desirahle that all questions 
 hetween the Tnited States authorities on the one hand, and 
 the Hudson's BayandPugefs Sound An-ricultural Compa- 
 nieson the other, with respect to the j.cissessorv rights and 
 
 Iclaimsof those companies, and of any other British suh- 
 jects in Oregon and Washington territory, should he 
 sc>ttled hy the transfer of those rio-hts and claims to the 
 Goyernment of the Tnited States, for an adeciuatc money 
 consideration. 
 
 In the exhihition of its pretended rights, the Hud.son's 
 Bay Company, hy its memorial, claims compeiisati',)n on 
 account of various trading posts or stations which it i»ro- 
 fesses to have occupied and improved in the territory of 
 the Tnited States, now ]iolitically organized as the State 
 of Oregon, and the Territory of Washington. 
 
\% 
 
 (■in, 
 Mil' 
 
 mmaammammamsm 
 
 • i. 
 
 i ., 
 
 11. • . 
 
 
 ( i. 
 
 It also claiins eonii)en8iitio)i on account of pretended 
 rights of trade and of navigation independent of, or dis- 
 tinct from, the occupation of land. 
 
 And on account of tlicse various branches of pretended 
 right, the Company, in its original memorial, claims com- 
 pensation to the amount of three million eight hundred 
 and twenty-two thousand and thirty-six dollars ($3,822,- 
 036); and in a motion to amend, claims the further sum 
 of four hundred and fifty-nine thousand nine hundred 
 dollars ($450,000): making hi all, the total claim of four 
 million two hundred and eighty-one tliousand nine hun- 
 dred and thirty-six dollars ($4,281,936.) 
 
 Tiie duty to be performed by the Commissioners in the 
 premises is defined in the second article of the treaty un- 
 der which they act, requiring that they shall "make and 
 subscribe (as they have in fact done) a solemn declaration 
 that they will impartially and carefully examine and de- 
 cide, to the best of their Judgment, and according to jus- 
 tice and equity, without fear, favor, or affection to tlieir 
 own country, all the matters referred to them for their 
 decision." 
 
 We propose and expect to show, to the satisfaction of 
 the Commissioners, that tliese claiihs of the Hudson's 
 Bay Company are for the most part utterly destitute of 
 any truth or Justice in fact or in law: that, in so far as 
 there may be right in any part whatsoever of such claims, 
 the same are extravagantly and monstrously exaggerated 
 ])y the claimants, to such exorbitant degree as to sound 
 in fraud, and to dishonor and discredit tlie entire cause of 
 the Company. 
 
 The discussion of the subject involves, in the first place, 
 sundry general consideratit)ns; and in the second place, 
 examination, in detail, of the various heads or branches 
 of claim, as subdivided in the memorial of the Company. 
 
 fl!!iii;;r 
 
 numrn 
 
• » 
 
 >f pretonded 
 lit of, or dis- 
 
 )f pretended 
 claims com- 
 glit hundred 
 iars ($3,822,. 
 further sum 
 inc liundred 
 hiim of four 
 ud nine huu- 
 
 ionersin the 
 lie treaty un- 
 l "make and 
 1 dechiration 
 nine and de- 
 rdiui;' to jus- 
 ;tion to tlieir 
 lem for their 
 
 itisfaction of 
 lie Hudson's 
 ' destitute of 
 :, in so far as 
 ' such chiims, 
 exago'erated 
 as to sound 
 itire cause of 
 
 iielirst place, 
 ;econd place, 
 1 or brandies 
 le Company. 
 
 (A.) — GkNEUAL CONSIDEUATIOXS. 
 
 The Treaty of June 15th, 184G, between the United 
 States and Great Britain, provides, — 
 
 "That in the future appropriation of the territory south 
 of the 4'.)th parallel of north latitude, * * tlie posses- 
 ory rights of the Hudson's Bay Company, and of all 
 British subjects who might be already in the occu]iation 
 of land or other proi)erty lawfully acquired within the 
 said territory, should be respected." 
 
 I. The first observation which suggests itself is, that 
 the obligation assumed by the United States, in the clause 
 of the treaty quoted, is to commence in future, upon the 
 "appropriation of the Territory." That is to say, the 
 United States undertook to respect the jtosscssory rights 
 of the Hudson's Bay Company upon their "future ap- 
 propriation" of the territory. 
 
 Appropriation of the territory would consist in the 
 United States doing one or both of two things; (1) Tak- 
 ing for its own use such portions of land as it would need 
 for public purposes as military reservations, light houses, 
 &c; (2) Establishing its land system over the territory. 
 
 Whenever, in thus making appropriation of the terri- 
 tory, the portion of land, sought to be afjpropriated, in any 
 degree infringed upon the possessory rights of the Com- 
 pany, the United States were bound to respect those 
 rights. If the United States had never made appropria- 
 tion of the territory, the special obligation assumed by 
 them in the treaty would never have occurred, and the 
 Company would have been left lor the protection of its 
 rights, whatever they might be, to the general principles 
 of public or municiital law, as the same might be appli- 
 cable to the subject. 
 
 In taking possession of land, to which the Company had 
 possessory rights, for public uses, the ignited States would 
 only be l)ound to respect the ]>ossessory rights of the Com- 
 l)any to the same extent, as in case of similar rights of 
 American citi/.ens. Aiul tliis point is expressly regulated 
 
 nnnni 
 

 :i|:f, ^ 
 
 ^m$ 
 
 [|i{ii:i 
 
 
 ' : I'.i •' i,." 
 J ! :' 'I 
 
 Hi 
 
 .h \i 
 
 4 
 
 l)y tliu Coiistitiitioii, wliit.-h provides that priviito jtropcrty 
 shall not hv taken tor puhlic uses oxcc[tt on jnst compen- 
 sation. Whenever, therefore, the United States took pos- 
 session of hmdin \\hi(,-h tlie Con)})any claimed possessory 
 rights, the C()m[»any would have no other claim against the 
 United States than for just comi)ensation. Such just com- 
 pensation is very properly detined by the Court of Claims 
 of the United States as the value of the pro[)erty taken. 
 See .Tohnson vs. the United States, 2 Nott <fc llun- 
 Iluntington, p. 891. 
 
 II. The next question is, What is the meaning of the 
 term "possessory rights," as used in the treaty? 
 
 The distinction between possessory- and i)roprietary 
 riii'hts has been the subject of discussion in several recent 
 decisions of the Supreme Court of the United States. 
 See Dellaro vs. V. S., o Wallace, jt. oOO. 
 Iliguera vs. U. S., Ibid., p. 820. 
 Grisar vs. McDowell, G Wallace, GQo. 
 
 The distinction requires examination in the })resent 
 case, and admits of being regarded under divers aspects. 
 
 1. The term "possessory rights'' means such rights as 
 grow out of the possession of j)roperty, real or personal. 
 "Possessory rights" are precisely the same thing as 
 "rights of posession.'" "Possessory rights" and the 
 "right of possessioif" are convertible terms: they are 
 such rights as grow out of the possession of property. 
 
 To possess property it must actually exist: possession 
 necessarily ini[)lies something ca]»able of being possessed. 
 
 Nothing can be possessed but that which has actual 
 physical substance. One is in possession of a house or a 
 field, or a book, because such things are capable of posses 
 sion. But one is not in })Ossession of rights in action, as 
 money due on bond, or other contract, which are choses in 
 action. 
 
 Tiius, in the case of a bond or note, the owner has pos- 
 si'ssory right> in the paper or note, with the writing o!i it. 
 
 mmmmm 
 
 nnnnRnin 
 
lite property 
 l^st c'OMipeu- 
 tcs took pos- 
 1 possessory 
 I iigainstthe 
 eh just coni- 
 rt of ChiiiDs 
 )erty taken, 
 fott (k IIiui- 
 
 uiiiig of the 
 
 proprietary 
 veral recent 
 (1 States. 
 
 the j)resent 
 'ers aspects, 
 ich riii-htsas 
 or personal, 
 le tiling as 
 >" and the 
 s: they are 
 3f property. 
 : possession 
 g possessed, 
 has actual 
 I house or a 
 )le of [tosses 
 in action, as 
 ire choscs in 
 
 ner has pos- 
 •liting on it, 
 
 and may maintain trover for the same; but he has no pos- 
 sessory right to the sum due on the Ijond or note. In re- 
 ference to that, he only has a right of action. A familiar 
 illustration of the distinction between possession and a 
 right of actior> is furnished by the case of a husband, who 
 accjuires title to his wife's choscs in action, when he re- 
 I duces them to possession. As husband, he luis a right to 
 !•, collect Ills wife's choses in action : if he does so collect 
 them, tlicy become liis property. Here, first, lie has only 
 a right to collect; second, a perfect title by actual pos^- 
 session. 
 
 J Possessory rights can arise oidy from i.ossession. Pos- 
 ' session can exist but in reference to that which has phys- 
 ical being. The possessory rights of the Comj.any are, 
 therefore, such rights as arise from their possession of 
 land or pcrsoual jtroperty in the ceded territory. 
 
 As we understand the memorial, there is no allegation 
 that the "possessory riglits" of the Company in any [.er- 
 sonal proi.erty luive been violated l)y the United States. 
 Such being the case, we think it unnecessary to say any 
 thiug further in reference to the possessory rights of the 
 Company in personal })roperty. 
 
 We propose to confine ourselves entirely to the (piestion 
 of the "possessory rights" of the Company to land in the 
 territory. 
 
 IIJ. AVhat are the "possessory rights " of the Company 
 to land? 
 
 1. It is clear that the Company have no fee simple 
 title to land, because no such title can be ac(piired to lands, 
 under the laws of England or the United States, except 
 by grant from the sovereign authority. This principle of 
 law is so fundamental in the jurisprudence of Great Bri- 
 tain and the United States, that it is thought unuecessary 
 to nudve an extended argument on the point. It is deemed 
 sufficient to refer to the following authority: 
 
Sf 
 
 iW 
 
 (i 
 
 ' f 
 
 
 ( 
 
 ■? 
 
 I' I'i 
 
 )■; 
 
 
 -i :.■. 
 
 ■ ,i''l 
 
 
 "^t is a fiinflameiital principle in the English law, that 
 the king is the law paramount of all the land in the 
 kingdom, and the true and only source of title. In this 
 country we have adopted the same principal and applied 
 it to our republican governments, and it is a settled and 
 fundamental doctrine with us, that all individual title to 
 land within the United States is derived from the grant 
 of our own local governments, or from that of the United 
 States, or from the Crown or royiJ chartered governments 
 established here prior to the revolution." 
 
 (3 Kent's Commentaries, sec. 37, pp. 457, 458.) 
 
 There is no pretence, therefore, whatever, for claiming 
 that the Company is entitled to a fee simple title to land. 
 
 Indeed the treaty etfectually dispones of this (piestion: 
 for itspeaksonly of "possessory rights ' in the Company, 
 necessarily implying that the fee simple title was not in 
 the Company. 
 
 2. Assuming then, that the company have no fee simple 
 title to land in the territory, an estate in law, analogous 
 to that of the company in 184G, is what the common law 
 denominates an "estate at will." 
 
 An estate at will is defined to be, "where on 3 man 
 lets laud to another to hold at the will of the lessor." — 
 (3 Kent's Com., sec. iii., p. 114.) A simple permission 
 to occupy creates a tenancy at will. — (Doe vs. Wood, 14 
 Meeson & Welsby, 682.) 
 
 The possessory rights of the tenant may be defined aa 
 follows: 
 
 (3 Kent's Com., sec. iii., p. 114.) 
 
 a. Tenant has a right to the possession of the land until 
 the crop is gathered. 
 
 h. lie is entitled to the use and fruit of the land. 
 
 c. He is entitled to reasonable estovers. 
 
 d. lie can maintain trespass tigainst wrong doers, who 
 invade his possession. 
 
 By the English statute of frauds, generally adopted in 
 the United States, "all estates or uncertain interests in 
 land, made by parol, and not in writing, have the force 
 and otroot of estates at will onlv." 
 
lish law, tliat 
 land in the 
 itle. In this 
 I and applied 
 a settled and 
 •idual title to 
 om the grant 
 )f the United 
 governments 
 
 H, 458.) 
 , for claiming 
 3 title to land. 
 :his ([uestion: 
 he Company, 
 de was not in 
 
 no fee simple 
 iw, analogous 
 ! common law 
 
 lere on 3 man 
 the lessor." — 
 le permission 
 vs. "Wood, 14 
 
 be defined as 
 
 the land until 
 
 the land. 
 
 ng doers, who 
 
 illy adoptee! in 
 in interests in 
 have the forco 
 
 Under the English and American law, all possession ot 
 land, with the consent of the owner, without a written 
 agreement, is an estate at will. 
 
 A tenant at will is not entitled to be paid for improve- 
 ments. 
 
 3. A\"e might also consider the quCvStion of "possessory 
 rights" as illustrated by the relation of the Indians in 
 America to the European sovereignties established here, 
 
 I the law being the same in that respect both in Great 
 I Britain and the United States. 
 
 See Wilkes vs. U. S., 9 Peters, 711. 
 
 Worcester vs. Georgia, 6 Peters, 615. 
 Lattimer's Lessee vs. Potet, 14 Peters, 4. 
 U. S. vs. Fernandez, 10 Peters, 303. 
 This point will be more particularly discussed hereafter, 
 in examining the value of the claims of the Company. 
 
 4. Another pertinent analogy is that of the pre-emption 
 laws of the United States. 
 
 This also will be further considered in discussinir the 
 Svalue of the Company's claim. 
 
 5. But we have no occasion to rest on mere analogy in 
 the present case. 
 
 It is the ordinary case of occupation of land by a 
 licensee at will. 
 
 The Company were rightfully in this territory only by 
 virtue of the license of trade. 
 
 This is obvious by reference to the terms of their 
 original charter, which restricts their operations to the 
 country around Baffin's Bay. 
 
 Further, it appears by their acceptance of the license 
 of trade, which is an admission on their part that with- 
 out such license they would have had no authority to op- 
 erate in this territory. 
 
 And it appears, further still, by their yielding to the 
 authority of the British Crown, in revoking tlieir license 
 in British Columbia, thus giving a practical construction 
 to the jwwers conferri'd upon them ;inder tlieir origitud 
 <'h:irt('r. 
 
} l1^ 
 
 mmmmmmm 
 
 .VI 
 
 And horo we nuiy rcnjark, tliiit wo do not think it 
 necessary to raise the (questions, whieli liave l)ccn raised 
 in (ireat Britain, as to whether the Company, under tlieir 
 original cliarter, have any other tlian proprietary riglits 
 as owners of tlie land. As appears from Mr. Dodd's 
 address, hereinafter* referred to, p. 30, it appears that 
 grave douhts exist in tlie best legal minds of Great 
 Britain, Avhether the original charter of the Company 
 legitimately conveys to the Company anytliing more 
 than the ownership of the land eml)raced in it. But we 
 think it unnecessary to pursue that inquiry in this rela- 
 tion and [)lace. 
 
 It is enougli for our purpose to show that the Com- 
 pany were acting .n this territory only by virtue of the 
 license. 
 
 Assuming that this is a question of law established in 
 the case, then we propose to see wluit consequences fol- 
 low froi;; it. 
 
 {a) The license is an authority to tlie Company to 
 carry on exclusive trade with the Indians. — Company's 
 Evidence, p. 317. It is this, simpl\ this, and no more. 
 
 The first question which arises in this connection is, 
 what, if any, right, interest, privilege, or title to land, 
 this license conveys. Xo mention is made of land. The 
 territory was in such a condition, being claimed both by 
 the United States and Great Britain, that it would have 
 been improper in Great Jiritain to nuike any alienation 
 of land in it. And it is on general princi}»le, resulting 
 from the fact of the United States clainiino; the territorv, 
 and special!}' because, by the treaty of Joint occupancy 
 between Great Britain and the United States, neither 
 jnirty was to do any thing to the prejudice of the other 
 party in reference to the territory. 
 
 And in this connection it is proper to note that the 
 treaty of 1846, by establishing the 49th parallel as the 
 boundary line, admitted, as matter of law, that the claim 
 of tlie Tnited States was well ibundcd up to this line. 
 
 jomm 
 
 wmmmmmmmm 
 
 JM^ 
 
!) 
 
 not think it 
 l)ccn niised 
 ^, iindGr tlieir 
 ietary riijlits 
 Mr. Dodd's 
 appears that 
 ds of Great 
 he CoTiijiaiiy 
 ythiiig' more 
 I it. But we 
 : in this rela- 
 
 at tlio Corn- 
 virtue of the 
 
 'stablislied in 
 :}quGncos i'ol- 
 
 Conipany to 
 
 — Company's 
 
 d no more. 
 
 onnection is, 
 
 title to land, 
 
 »f land. The 
 
 nied both bv 
 
 would liave 
 
 ly alienation 
 
 })le, resultino; 
 
 the territory, 
 
 it occupancy 
 
 tates, 11 either 
 
 of the other 
 
 note that the 
 arallel as the 
 hat tlie claim 
 I to this line. 
 
 The United States, it must be remembered, did not de- 
 rive title to this territory from the treaty of IS-IO. The 
 legal effect of the treaty was only that it containe<l the 
 acknowledgment by Great Britain of the pre-existing title 
 of the United States. In legal contemplation the terri- 
 tory was the territory of the United States, thence hith- 
 erto, at and previous to the issuing of the license of trade 
 to the Company. 
 
 As a question of law, then, at the time of the conces- 
 sion of the license, a grant of land in the territory from 
 the British Crown would have been without legal author- 
 .. ity, as attempting to grant land lielonging to the United 
 States and not to Great Britain. 
 
 In point of fact, then, and in point of law, the license 
 of trade did not grant any permanent estate in the lands 
 of tlie territory. 
 
 The question now comes up, what interest in the land 
 did the license ijrant? 
 
 In determining this question, the status of tV ; territory 
 must be kept in mind. It was claimed by botli Great 
 Britain and the United States, the title of the United 
 States being subsequently admitted by Great Britain. 
 By the terms of the treaty of Joint occupancy the terri- 
 tory was open to the occupancy of the subjects of Ijoth 
 countries for the time beinir. 
 
 The utmost which could properly be claimed on behalf 
 of the Company in this regard is, that the license author- 
 ized the provisional occupancy of so much of the terri- 
 tory used, ';i such manner as was necessary and proper 
 to effectuate the power of exclusive trade with the 
 Indians, conceded by the license. The Company were 
 authorize by the license to carry on exclusive trade with 
 the Indians, and as incident to this power, to use land 
 in the territory in such manner, and to such extent, as 
 might be necessary to carry on the business of exclusive 
 trade with the Indians, 
 o 
 
 nnmi 
 
irfir 
 
 1(1 
 
 i||i^.i^; 
 
 i I 
 
 Tliis would, tor iiiHtaiioo, nccoKsarily itni»ly a riglit on 
 the part of the Company to uso C'ortain points in the ter- 
 ritory for posts; also to open roads, kc. The privilege of 
 using such pasturage as might be necessary for the pur- 
 poses of the Company would also seem to follow. To 
 this might be added the use of so much agricultural land 
 as would be necessary for the purposes of the Company 
 as an Indian trading association. And also the use of the 
 necessary timber. h\ short, it might be possible to claim 
 for tlie Company all such use of the land and water and 
 timber of the territory as might be necessary for the pur- 
 poses of the Company, keeiiing in view that the only le- 
 gitimate business of the Company was trading with the 
 Indians. 
 
 The Company could use kind in tlie territory, so far as 
 was necessary for them in conducting their operations as 
 an Indian trading company. The authority of the Com- 
 pany to use the laiul in the territory was limited and re- 
 stricted within such a circk^ as was necessary for them to 
 act as au Indian trading association. Within this circle 
 their use of the land might be rightful and proper: out- 
 side of this circle it was without authority. 
 
 For instance, they had no authority to engage in agri- 
 culture, or pasturage, or milling, for the purposes of 
 carrying on general trade in the territory or with the 
 view of conducting a foreign trade. 
 
 All use of the land beyond what was necessary to en- 
 able them to carrv on the business of fur traders was out- 
 side ot their powers. The quantum of their rights in the 
 land of the territory is to be determined by reference to 
 the Indian trade. 
 
 We consider these general principles to be the proper 
 measure of the rights of the Com^tany to use land in the 
 territory. 
 
 To make a practical application of them, we submit 
 that the Company only had a right to occupancy of 
 lands of the territorv. There was no nocossitv for them 
 
 't>i'; ■'ii; 
 
11 
 
 y n rig] it on 
 :ri ill the ter- 
 ) privilege of 
 for the pnr- 
 follow. To 
 'ultunil land 
 le Company 
 lie use of the 
 ible to claim 
 (1 water and 
 for the pur- 
 ; the only le- 
 ng with the 
 
 >ry, so far as 
 )perations as 
 of the Coni- 
 [litcd and re- 
 f for them to 
 in this circle 
 proper: out- 
 gage in agri- 
 purposes of 
 or with the 
 
 lossarv to en- 
 ders was out- 
 rights in the 
 reference to 
 
 e the proper 
 io land in the 
 
 1, we submit 
 )ccupancy of 
 ■^itv for them 
 
 to have any other title than occupancy in the then unci- 
 vilized condition of the country. Occui>ancy was all 
 that was re(piisite as the territory was then situated. 
 This occupancy was an incident of their license to trade 
 with the Indians. This license to trade was merelv nro- 
 visional, subject to revocation at any moment by the 
 British Crown. 
 
 As the license to trade was the principal thing, and 
 occupancy of the land a mere incident arising from such 
 license, it is manifest the right of occupancy could have 
 no more permanent existence than the license itself. 
 The license to trade being the principal right, and occu- 
 l)ancy a mere consc([Ucncc Howing from such principal 
 right, the right of occupancy must jjerish with the license. 
 
 This we consider so plain as not to require further ar- 
 gument. 
 
 The license might expire in three ways: 
 
 1. By the cessation of the interest of the licensee, or, 
 
 2. By revocation. 
 
 3. By expiration of the title of the licensor. 
 
 It is laid down as a familiar principle of law that "the 
 death of either party will of itself revoke it," (a license.) 
 —(Washburn on Real Property, vol. 1, p. 414.) There 
 is no doubt of this, as a question of law in the case of an 
 individual. 
 
 So, by parity of reason, where a government, as in this 
 case, grants a license, the license expires with the power 
 of this government over the subject-matter. Where the 
 individual licensee dies, the license expires ; so where the 
 power of the government expires, the license ends. 
 
 The British Crown had authority to grant the license 
 at the time it did, but after the treaty of 1846 its power 
 in the matter was gone, and the license ended. 
 
 If we are correct in this view of the case, the Company 
 had no right, after the treaty, to act under the license, the 
 license being thereby made void and of no effect, and 
 further occupancy of land by them, except for the purpose 
 of winding up their ]»usiness, was ummthorizcd. 
 
 / 
 
) • 
 
 V2 
 
 ft. 
 
 '■1 'r;!:' 
 
 m 
 
 vii 
 
 '#11,, 
 
 IJiit iit iUiy rat(.', tlie license by its oxpross terms was 
 revocable, and in point of tact it was revoked. 
 
 And hero it is wortliy of observation tliat tbe licensi; 
 itself expressly provided tliat it should not be operative 
 within the territory of the United States. — (Coi. pany's 
 Evidence, p. i}18.) This is important • . sliowing tliat it 
 never was tlie intention of the Britis'' Jovernment to au- 
 thorize the Comi)any to operate .thin the territory of 
 the United States. 
 
 Siicli liavinii been the orig"..ial purpose of the Crown 
 in the very act of grantini:: the license, there was jiecu- 
 liar propriety in the revocation thereof alter the treaty 
 of 1846. 
 
 This furnishes us with additional inducement to con- 
 clude that the revocation of the license ended the author- 
 ity of the Company in the territory. It was only the car- 
 rying out by the British Government of its primary policy. 
 The same considerations of public, i)olicy which induced 
 the British Government to i)rovide expressly, in the first 
 intance, that the Company should not operate within the 
 territorv of the United States, would indues the Govern- 
 ment to revoke the license after the territorv was ascer- 
 tained to be within the United States. 
 
 Great regard to the polic}- manifested by the British 
 Go', crnment in granting the license compels us to give 
 the fuliost possible eflect to its revocation of the license. 
 
 Alter the revocation of the license, certainly if not at 
 the date of the treaty of 1840, the Company was fiincia 
 officio in the territory as fur trader, and with its extinction 
 as fur trader ended all riglit to occupancy of land in the 
 territory. 
 
 A few observations in addition on the subject of the 
 law of licenses, and we will pass from this branch of the 
 case. 
 
 A license is defined as follows : 
 
 " A license is an authority to do a particular act, or 
 series of acts, upon another's land, without possessing any 
 estate therein." 
 
 th 
 
IS 
 
 , terms was 
 1. 
 
 the liocMis(! 
 operntivii 
 (Coi, pany'H 
 \\\\\<^ tliJit it 
 mciit to aii- 
 
 territorv of 
 
 'the Crown 
 ) was jiecii- 
 • the treaty 
 
 V 
 
 lent to con- 
 Ithe aiithor- 
 Diily the ear- 
 Ill ary policy, 
 lich induced 
 , in the first 
 e within tlic 
 the Govern- 
 y was ascer- 
 
 the British 
 ; us to give 
 
 the license, 
 nly if not at 
 y wasfuncta 
 ts extinction 
 
 land in the 
 
 diject of the 
 ranch of the 
 
 cular act, or 
 )ssessinsi' anv 
 
 Waslilmrn on Real J^roperty, vol. 1, p. 412, 
 See further on same point : 
 
 Cook V. Stearns, 11 Mass., fi'A^l. 
 
 Tayler v. Waters, 7 Taunt., :}74. 
 
 Mum ford v. AVHiitney, 15 Wend., 3H0. 
 
 Wolfe V. Frost, 4 Sandf. Ch., :'2. 
 
 l*rince v. Case, 2 Amer. i^eadinu' Cases, 728. 
 The essential and descriptive characteristic of a license, 
 (!onsidored in reference to land, is that the licensee ac- 
 (piircs no estate therein. He receives authority to do 
 some act, or acts, in connection with the land of another, 
 hut acquires no estate. Under the operation of this piin- 
 cii)le, the Company, as licensee, ac(piircd no estate in land. 
 Hence, therefore, it is further laid down that "a li- 
 cense nuiy he created hy parol, as it passes no interest in 
 the land." 
 I AVashhurn on Keal Projierty, vol. 1, p. 412. 
 
 It is also laid down that a license may be revoked. — 
 {lb., p. 413.) 
 
 Further, that a license is strictly construed. — (//>., p. 
 414.) 
 I Again: 
 
 ;| "A license is so much a matter of personal trust and 
 confidence that it does not extend to any one but the 
 licensee." — [lb., p. 414.) 
 
 The Company could not have aliened the privilege of 
 trade they enjoyed under the license. Neither, it would 
 seem, therefore, could the}' alien the occupancy of land 
 they enjoyed as an incident to the license. 
 ^ In one class of cases the license has been to build a 
 house on licensee's land, and in some cases the revocation 
 has been before the building was completed, in others 
 afterwards, and in both the licensee was obliijed to re- 
 move it without any right to claim compensation.. 
 Washburn on Real Property, vol. 1, p. 415. 
 Jamieson v. Milleman, 3 Duer, 255. 
 Prince v. Case, 10 Conn., 878. 
 
I \m\w- 
 
 14 
 
 t If 
 
 .1 > 
 
 
 t 
 
 'ii. 
 
 Jackson v. Babcock, 4 Johns., 418. 
 Batcheldor v. Wakefield, 8 Cush., 252. 
 Harris v. Gillingham, 6 N. H., 9. 
 Benedict v. Benedict, 5 Day, 464. 
 
 From these several principles of la'.v the slight and pre- 
 carious interest of the licensee appears. 
 
 If the license in this case had given the Company 
 express authority to use and occupy land in the territory, 
 it is submitted, that upon the termination of the interest 
 of the licensor, or upon the revocation of the license, the 
 privilege to use and occupy land would, according to the 
 principles of law applicable to the case, hereinbefore cited, 
 be at an end. 
 
 If this be true where the license expressly conferred 
 the authority to use and occupy land, much more would 
 this be the case, where the right to use and occupy the 
 land was not expressly conferred, but was a mere incident 
 as in this case, flowing from the principle right granted 
 in the license, that of the Indian trade. 
 
 IV. We infer that the "possessory rights" of the Com- 
 pany in lands, pushed to the utmost extent of possible 
 legal right, are only as follows: 
 
 a. liight to the possession of land occupied by them 
 at time of the treaty. 
 
 b. Right to the use and fruit of the land occupied by 
 them at time of the treaty, in the same manner they had 
 been accustomed to use it. 
 
 c. To maintain possessory action against trespassers. 
 
 d. The duration of these rights to be comn.iensuratt' 
 with the license of trade under which they were fuuc- 
 I'oning as a corporation in the territory. 
 
 In short, vl consider that the full measu" of justice is 
 awarded to the Company, in considering them as tenants. 
 under the United States, of the lands in their possession 
 at the time of the treaty, until the expiration of their li- 
 cense to trade. 
 
 o- 
 
 I ' 
 
15 
 
 slight and pre- 
 
 the Company 
 n tlie territory, 
 of the interest 
 the license, the 
 jcording to the 
 iinbefore cited, 
 
 essly conferred 
 ch more would 
 ind occupy the 
 mere incident 
 3 right granted 
 
 ts" of the Com- 
 ent of possible 
 
 uipied by them 
 
 lid occupied by 
 anner they had 
 
 nst trespassers. 
 
 commensuratt' 
 
 bey wei-e func- 
 
 I.:- of justice is 
 hem as tenants, 
 :heir possession 
 tion of their li- 
 
 Acconling to this view, the Company would not be 
 entitled to payment for the improvemeMts left upon the 
 hmd at the expiration of their possession. 
 3 
 
 \. But it may be thought that this is too technical 
 a consideration of the case, and we will therefore con- 
 eider it in a more popular light. 
 
 We maintain then, that, by the treaty, the Company 
 were, at most, entitled to possess only^ the land occupied 
 by them at the time of the treaty as they were then doing. 
 In other words, they had the right, by the treaty, to oc- 
 cupy and use their posts, and farms, and pasturage, and 
 use necessary timber therefor, as they had been accus- 
 tomed to do; and that this right was to continue until 
 their license to trade expired, and no longer. 
 
 Here two questions occur — 
 
 1. Have we rightly defined the extent or quality of the 
 Company's "possessory rights?" 
 
 2. Have we properly limited the duration of these 
 rights, to the continuation of their license to trade? 
 
 In reierence to the first question, we do not well see 
 how any larger detinitiou can be given to the term "pos- 
 sessory rights," in reference to land, than we have given. 
 "We conceive that we have conceded every right apper- 
 taining to the possession of land, where that possession 
 is 'ot under a fee simple title. 
 
 i I I reference to the period we have assigned for the 
 duration of the Company's rights of possession, we con- 
 sider that tiiere can be no substantial ground for diU'er- 
 «nce of opinion on this point. 
 
 The Company were o[ierating in the territory, south of 
 the 49th parallel, not under their general charter, but 
 tmdei' a special license from the British Crown. 
 
 This license was Umite«l to twenty-one years, and sub- 
 ject to repeal at the pleasure of the Crown. In point of 
 fact, this license was actually rescinded by the Crown in 
 \^K)\K — (Miscelhineous Evidence for r. ^States, p. 388.) 
 
 > M 
 
) i'fFilfr 
 
 UMiillliHi 
 
 10 
 
 '\\'VM 
 
 ■ If i' 
 
 mt\ 
 
 ;< I' :'• 
 
 |,i I 
 
 1 
 
 i li 
 
 I'. I'- lit 
 
 The Company liad no right whatever to be in the ter- 
 ritory, south of the 49tli parallel, excei)t by virtue of its 
 license to trade. 
 
 Tlie Company was a corporation and it is a familiar 
 principle of law, that a corporation can act only within 
 the limits of the authority granted to it. A banking cor- 
 poration can exercise no busifiess but that of banking: 
 an insurance corporation that of insurance, and so on. 
 The same principle apjilies as to the territory within 
 which a corporation may exercise its functions. 
 
 The original charter of the Company only authorized its 
 operations in the country around Bafiin's Bay, and it was 
 only by virtue of the license of tnji'j, above referred to, 
 that the Company carried on its );' h:>! in this territory. 
 But for this license of trade, its (/pcrations in this terri- 
 tory would have been ultra vires, and illegal. Without this 
 license of trade, its operations in this territory would 
 have been as illegal as operations of the same nature by 
 it would have been in India. As its riglit to be in this 
 territory entirely depended on its license of trade, when 
 that license expired, it was without authority to continue. 
 
 The British Crown did revoke, in 1858, this license to 
 trade, so far as it extended to British Columbia, and it is 
 a historical fact that the Companv immediatelv vielded to 
 this action of the British Government. 
 
 If, therefore, the expiration of the lie >ii ■ - to trade in 
 British Columbia operated to extinguish the ' 'ompaii}' in 
 that locality, it is difficult to see how a difteren; <. Jlect can 
 be attributed to this action of the British Government, so 
 far as the rights of the Company are coricerned, in the 
 United States. To suppose otherwise, would be to im- 
 agine tlie extrjiordinary spectacle of a corporation being 
 held to be entitled to greater privileges '",. a foreign coun- 
 try than in the country of its origin. • 'dinarily, a cor- 
 poration is a thing of local existence, limit"d to the coun- 
 try of its origin, and when it is recognized beyond the 
 countrv of its orii> i;, it is oocause of the comitv of nations. 
 
 Mi. 
 
r 
 
 be in the ter- 
 virtiie of its 
 
 is a familiar 
 
 t only within 
 
 hankino- cor- 
 
 of banking: 
 ;, and so on. 
 ritory within 
 3n8. 
 
 authorized its 
 ly, and it was 
 e referred to, 
 this territory. 
 ! in this terri- 
 
 Withont this 
 'ritory would 
 me nature by 
 
 to he in this 
 f trade, when 
 y to continue, 
 this license to 
 iibia, and it is 
 telv yielded to 
 
 so to trade in 
 le ( 'ompany in 
 trejii '. '.oct can 
 ovjrnment, so 
 cerncd, in the 
 »uld be to ini- 
 poration being 
 I foreign conn- 
 linarily, a cor- 
 -! to the conn- 
 ed beyond the 
 nitv of nation?. 
 
 But tliis comity has never boon construed, so far ns we 
 are aware, to authorize n corjioration to he (Mititlcd to 
 ffroater ri'jrhts in a foroiiiii country than in the (;ountrv of 
 its ori2:in. 
 
 We submit, therefore, that if nnythin<i, can be clear, as 
 a Icii'al [troposition, it is, that a corporation, extinguished 
 by the action of its own government, must l)e treated as so 
 extini::uished in foreiirn countries. 
 
 A contrarv doctrine, in this case, wouhi be followed bv 
 the most strange result. The spectacle would be pre- 
 sented of a foreign coi'i)ora:ion, dead at home, but alive 
 abroad. 
 
 Again, if the Company was not extiiifrnished by the 
 repeal of its license oltrade within the United States, what 
 limits can be set to its existence? It must be dead or per- 
 petual. Surely no one will be found so hardy as to insist 
 that it has a right to perpetual existence in the United 
 States. If it is not [jcrpetual, then, the only limit to it, 
 is the cessation of its existence under the Enjxlish law. 
 According to that law, it expired in British Columbia 
 in 1S,'>!I, by the withdrawal of the license under whicb it 
 had its being within the United States. It must therefore 
 be considered ns ending within the United States at the 
 same time. 
 
 As confirmatory of this view of the case, we call atten- 
 tion to the elaborate address of Mr. .Tas. Dodds, a stock- 
 holder in the Company. 
 
 ^ "This (1840) was the palmy time of the Hudson's Bay 
 Comi)any. Its possessions and powers were then at their 
 zenith. They held kui)ert's Land by the royal charter, 
 Avhich was perpetual. They held the whole Indian ter- 
 ritory to the Paciiic by an exclusive license, which was 
 termiiuil)le in Ls.V.t. They held A'ancouver's island by a 
 similar license, also terminable in 1^'){). Three diflerent 
 possessions bv three ditterent titles."— (Mr. Jas. Dodds' 
 Address, p. 2-3.) 
 
 8 
 
.(WTmr^ 
 
 BHsnsnsBi 
 
 '(''■I'l'l: ' 
 
 IH 
 
 I 
 
 M: 
 
 
 
 VI. if wo aro correct in our (lolinition of the possesi?- 
 ory rights of the Coiiipiiiiy, and the duration of those 
 rights, tlio question may now properly be considered, 
 wl]ether tlie United States, in pursuance of the obliga- 
 tions of the treaty, have "respected" those rights. 
 
 W^e are willins^ to ffivo to this clause of the treatv the 
 most liberal admissible interpretation. As comprehend- 
 ed by ni^, it imports that tlie United States shall recognize 
 the r >ssessory rights of the Company; that they shall not, 
 by any act of their own or their officers, invade those 
 rights; and that they shall extend proper judicial remedy 
 for their protection. 
 
 The liability assumed by the United States in the 
 treaty in regard to the possessory rights of the Company 
 is precisely the same in principle as the obligation as- 
 sumed in former treaties in regard to the titles to prop- 
 erty, to wit, the treaties with Great Britain, with France, 
 with Spain, and with Mexico. The chief difference is, 
 that, in the case of this particular treaty uiuler considera- 
 tion, the recognition is only of possessory rights, being 
 the sole rights the Company could have. The obliga- 
 tion of the United States to respect those rights is pre- 
 cisely the same in principle as its obligation under other 
 treaties to respect land titles, and its general obligation 
 to respect the titles of its own citizens to property gene- 
 rally. The United States, by undertaking to respect the 
 possessory rights of the Company, only assumed in rela- 
 tion to that company its universal obligation to respect 
 the rights of all persons within its jurisdiction in posses- 
 sion of propert3\ All that the United States, therefore, 
 were reijuired to do by the treaty in this case, was to re- 
 frain from violation, by itself or its othcers, of the possess- 
 ory rights of the Company, and to permit the Company 
 to enjoy the judicial remedies for individual trespasser^ 
 customary in the country. 
 
 We make these observations, because an idea seems to 
 prevnil. in certnin qunrters. thfit the United States w<m'p 
 
 m 
 
■m 
 ■-•5 
 - --^ 
 
 ■ ■■■* 
 
 the possess- 
 ion of tliose 
 considered, 
 ' the obliga- 
 iglits. 
 
 le treaty tlie 
 3omprehend- 
 all recognize 
 ley shall not, 
 nvade tliose 
 iicial remedy 
 
 tates in the 
 he Company 
 bligation as- 
 tles to prop- 
 with France, 
 ilitterence is, 
 ler considera- 
 rights, being 
 The obliga- 
 ■ights is pre- 
 i nnder other 
 al obligation 
 'operty gcne- 
 to respect the 
 imed in rcla- 
 m to respect 
 on in possei^- 
 tes, therefore, 
 se, was to re- 
 ^f tlie possess- 
 the Company 
 Lial trespasse:^ 
 
 idea seems to 
 (1 Stntes were 
 
 10 
 
 bound to some special measure of i>rotoction of the Com- 
 pany's rights, by some novel legislation, or by becoming, 
 in some sense, tlie peculiar guardians of the Company. 
 We insist, on the contrary, that the rnited States were 
 not called to an}' active or special legislation in the prem- 
 ises, but discharged their whole duty when they refrained 
 from themselyes infringing on the rights of the Company 
 and permitted the Company to enjoy the benetit of their 
 Judicial system. 
 
 To illustrate our idea: Mr. Astor at one time was in 
 possession of the trading post known as Astoria or Fort 
 George. If this ])osscssion of his had continued at the 
 time of the treaty, the United States would, on general 
 l)rincii>les, have been bound to respect his possessory 
 rights. This obligation would only imply that the United 
 States were not to violate those rights themselves, but 
 would not infer any liability on the part of the United 
 States for the action of trespassers. These would be left 
 to be dealt with in the ordinary course of legal proceed- 
 ings. 
 
 So far, therefore, as the Com[>any complain of unau- 
 thorized trespassers upon their posessions, the Ignited 
 States are in no sense responsible therefor, any more 
 than for trespasses to ti'iy other complainants. 
 
 A'll. We ask now what evidence would prove that the 
 United States invaded the possessory rights of the Com- 
 pany? We imagine that this evidence would consist of 
 two distinct states of alleged fact: 
 
 , First, where the United States took possession of some 
 portion of land claimed by the Company ; or, secondly, 
 permitted donation or pre-emption claims to be located 
 on land claimed by the Company. 
 
 1. As regards the first point, we conceive that the in- 
 fringement by the United States in taking jiossession of 
 land for their own use is as little as could well be imair- 
 ined un<ler the s))C('ial circumstances of the case. 
 
ly^m 
 
 20 
 
 i'ilr 
 
 I'l 
 
 i!' 
 
 > i , 
 
 1; ! 
 
 * 1 
 
 .J 
 
 
 
 •'I'll ^'il 
 
 Tlic L'nitc'd States ostiiblisliod a inilitiiry post at Van- 
 ('C)iu or. But this was done with the consent and appro- 
 l»ation ot'the C!!onipany, and was eminently advantageous 
 to them, as protection a^'ainst settlers, and as furnishing a 
 mart for the f>ale of their goods at tliat jx/int. The great 
 \ ' valuation the Company ni»,. i)ut ui)on \"ancouver is al- 
 \ most entirelv because of the estahlishment of the United 
 I States post there, which tended more than anything else 
 to make it a commercial point. So far as the establish- 
 ment of the United States post at Vancouver is concerned, 
 then, it was not an injury, but a benefit to t.iC Company. 
 
 2. Secondiv, asto the next form of alleij-ed infringement 
 of the possessory rights of the Company, consisting in the 
 United States permitting persons, under the (lonation or 
 other laws, to locate on the lands claimed by the Com- 
 [tany, we submit several considerations. 
 
 It is to be noted that the donation huv expressly ex- 
 cepted from location lands claimed by the Company. 
 This is an important fact and shows the great anxiety of 
 the United States to have the "possessory rights" of the 
 Com[»any respected. It was .special legislation for the 
 peculiar benefit of the Company. The United States 
 were not content to be passive in the matter of protect- 
 in<»: the riij-hts of the Comr)anv, but tliey took the most 
 efHcient and active step by positive legislation to protect 
 the Comiiany in its rights. Under this law, locations 
 made on land claimed by the Company were null ai ' 
 void and of no effect. 
 
 The Ignited States should not be held responsible for 
 the lawless acts of its officers. The Uiuted States having 
 exce[»ted from the donation laws lands claimed by the 
 ^ Company, all such locations were void, and tlie Company, 
 by taking pro}>er ste[is, had a legal remedy within their 
 reach to prevent these unlawful locations. It was the 
 duty of the Com[>any to avail itself of the legal remedies 
 provided, and if it failed to do so it was in default and 
 has no right t(t look to the United States for indemnity 
 fir los;-.cs incuri'cd b\- its ow n hu'lierr. 
 
21 
 
 post tit Van- 
 t and appro- 
 idvantagcous 
 I fiirnisliiiiga 
 :. The great 
 couver is al- 
 )!' the United 
 mything else 
 the establish- 
 is concerned, 
 .iC Company, 
 infringement 
 sisting in the 
 > donation or 
 by the Com- 
 
 expressly ex- 
 le Company. 
 ;at anxiety of 
 riglits" of the 
 ation for the 
 .'nited States 
 er of protoct- 
 jok the most 
 ion to protect 
 hiw, locations 
 vevQ null ai ' 
 
 ^sponsible for 
 States having 
 aimed by the 
 the Company, 
 - Avithin theii- 
 It was the 
 eijal remedies 
 n default ami 
 for indemnitv 
 
 When we consider the indefinite character of the Com- 
 pany's land claims, so uncertain that its chief agents, as in 
 the case of Mr. McTavish, wore unable to define the 
 boundaries, we should be prepared to look with great 
 leniency on the acts of subordinate officers of the United 
 Btates who permitted locations to which the Compaii}- 
 take exceptions. 
 
 If the ['nited States are held responsible for the nc- 
 tioPis of its officers in ]»ermittiiig locations on lands 
 claimed by the Company, then we submit, that an im- 
 portant inrjuiry is, whether those lands thus made subject 
 to lo3ation were in the actual occupation of the Company. 
 Tlie Companv's i-ights arose i'rom i)Osses8ion. If thev 
 reliufpiished possession, this o[)erated as an abandonment 
 of their right, and the land so abandoned became prop- 
 tu-lj' subject to location. AVe maintain then, to establish 
 any claim in this regard against the Government, they 
 must show that they were in actual occupany of the land 
 at the time of the location complained of. 
 
 Take the case of Vancouver. The Company claimed 
 possessory rights in nearly 200,000 acres of laud. They 
 never had over about 2,000 acres in cultivation, the resi- 
 due they pi'ofess to have used as pasture. After tlie treaty 
 they gradually reduced their farming operations at V^an- 
 couver, and finally cultivated but a fragment of the land 
 originally in cultivation, and pastured to a small extent. 
 This oi)erated as an abandonment and relinquishment of 
 their possessory rights, and the lands thus abandoned and 
 relinquished by them became subject to location. 
 
 The same state of things existed at other points than 
 Vancouver, where the Company claimed possessory rights, 
 and the same deduction of law should bo made in refer- 
 ence to those other points. 
 
 It may be appropriate to notice, in this connection, 
 that the Company seems to assert that the United States 
 were bound to enact some special legislation, or to do 
 some especial acts to cause the possessorv riirhts of the 
 
i \m\T 
 
 .10 
 
 ilfi 
 
 
 !!!!;;;;; m 
 
 
 Com[)uny to be respected, other than wliat was done. 
 But it is Hubriiitted that the United States fully performed 
 their duty in tliis reo;}ird. 
 
 In the tirst [dace, the provision in the treaty, that the 
 " possessory riu'hts" of the Company should be respected, 
 was the authoritative declaration of a treaty, the "supreme 
 law'' upon the subject. Whenever a treaty disposes of 
 the subject-matter in such a manner as that the courts 
 can take notice thereof, it executes itself, without further 
 lei::islation. In this case, the treaty says, the "possessory 
 rights" of the Coni])any "shall l)e respected." This, it 
 is submitted, is the law of the case. If the treaty had 
 said, "Congress shsdl legislate so as to cause the 'posses- 
 sory rights' of the Company to be respected," then the 
 courts could not enforce the treaty in tliis regard, without 
 legislation. But, we contend, the treaty is so framed as 
 to execute itself. 
 
 To illustrate: su[»pose that Congress had passed a law, 
 in the terms of the treaty, ordaining that the "possessory 
 rights" of the Company should be respected. Would not 
 the courts liave felt bound, judicially, to enforce this res- 
 pect by api)ropriate legal remedies? So, in this ease, the 
 treaty is legislation on the subject, and is law for the 
 courts, and the Company is entitled to all legal remedies 
 for the protection of its rights against trespassers. 
 
 When, in audition to the provisions of the treaty, we 
 remember that the United States, by special legislation, 
 excepted from the donation law lands claimed by the 
 Company, it is submitted that tVie United States fully 
 performed the obligation they had assumed to respect the 
 "possessory rights" of the Company. 
 
 If it be said, on the other hand, that the land officers 
 of the United States did grant titles, under the donation 
 laws, to settlers, in any land belonging to the Company, 
 {which we deny), — then it is submitted that, if the grants 
 of title thus made covered lands to which the Company 
 had "possessory rights," such action of the officers of 
 
 !; ii 
 
 .Ji 
 
23 
 
 at was done, 
 ly performed 
 
 aty, that the 
 3Q respected, 
 he "supreme 
 y disposes of 
 at the courts 
 thout further 
 I "possessory 
 d." This, it 
 le treaty had 
 e the 'posses- 
 id," thou the 
 j;-ard, without 
 so framed as 
 
 passed a law, 
 
 3 "possessory 
 
 Wouhl not 
 
 force this res- 
 
 this ease, the 
 
 law for the 
 
 ejjal remedies 
 
 )assers. 
 
 lie treaty, we 
 al legishition, 
 limed by the 
 1 States fully 
 to respect the 
 
 ; land officers 
 L' the donation 
 the Company, 
 t, if the grants 
 the Company 
 the offioers of 
 
 the land office was void, as heinii,' in violation of the 
 treaty and the donation laws, and the persons claim- 
 ing under such titles, as against tlie Company, were mere 
 trespassers, and the United States are not responsible 
 for such illegal acts of its officers. 
 
 The question of the lialiility of the United States for 
 the acts of its officers, has been very fully considered re- 
 cently in the Court of Claims of tlie United States, in 
 the case of the Floyd Acceptances. — (T. AV. Peiree vs. 
 The United States, 1 Nott k JIuntington, p. 270.) And 
 it was held by the court, that the United States are not 
 liable for the acts of its officers, where those acts are in 
 violation of law. 
 
 So far, therefore, as the Company claim that their "pos- 
 sessory rights" have ])een violated by the United States, 
 through tlie action of the officers of the land office, in 
 granting titles under the donation laws, it is submitted 
 that the assumption, that such acts have been done by 
 the officers of the land office, necessarily admits that such 
 acts were illegal, as being in violation of the supreme 
 law of the treaty, and the donation law of Congress. 
 
 If the land officers m-anted titles to lands to which the 
 Company had "possessory rights," it was an illegal acton 
 ' their part, for which the United States were not respon- 
 silile. Against such illegal action the Company had the 
 same remedy as any holder of property in the United 
 States had against illegal trespassers. The United States 
 are bound, by the law of the land, to respect the property 
 rights of all persons within the United States, but it has 
 never been imagined the obligation rendered the United 
 States responsible, in damages, for the illegal action of 
 its officers. AVe conclude, therefore, that the United 
 States arc not responsible for the action of its land offi- 
 cers, aft'ecting the "possessory rights" of the Company, 
 such action being in violation of the "supreme law" of 
 the treatv, and the donation laws of Congress. 
 
^es 
 
 wmmmm 
 
 tmm 
 
 '\-W 
 
 ililii;;;:ii 
 
 24 
 
 W wo !iro correct in llic jtroposit'ons suhmittcd, tlic 
 (luestiou of (liiniagoH is reduced witlilu very Hiiuiil propor- 
 tions. 
 
 VIII. As to tlie (piestion of (hinuia:es, we propose now 
 to submit certain considerations as detennininiji: tlic i)rin- 
 <;iples upon wiiicli they sliould be estimated, if it is con- 
 sidered that any case is made for (himages. 
 
 1. Damages are for injury to tiie "possessory rights" 
 of the Company, in land. No aUegation is made of 
 the violation of the possessory rights to personal prop- 
 erty. The case is tlierefore coniined to the "possessory 
 rights" of the Company, "in tlie occupation of hind." 
 "Possessory rights," in reference to land, are the same 
 things as "rights of possession" to land. They are, it is 
 believed, convevti}>le terms, and mean precisely the same 
 thing. 
 
 2. AVhere these possessory rights have been invaded 
 by the direct action of the United States, m taking pos- 
 session of land in the occui)ancy of the Company, as the 
 instance of the military reservation, established at Van- 
 couver, we submit, that this is not to be regarded in 
 the light of a trespass, but as a legitimate exercise of the 
 right of eminent domain, and the Company occupies no 
 otlicr different or better position than a citizen of the 
 United States, whose property is taken for public uses, 
 which the Constitution authorizes to be done, on the al- 
 lowance of "JuKt compensation." 
 
 This "just eonjpensacion" is carefully detincd in the 
 cases of Johnson vs. The United States, 2 Nott k Hun- 
 tington, p. 31)1. 
 
 Especially is this principle of compensation to be re- 
 garded, where, as in the instance of the nulitary reserva- 
 tion at Vancouver, the occupation is made by the United 
 States with the assent and at the re([ucst of the Company. 
 
 Furthermore, where, as in the ease of the reservation at 
 Vancouver, the C<Mnpafiy is largely benetited thereby, in 
 
 i 
 
 liilli! 
 
 J 
 
'jr, 
 
 luittod, thr 
 luiU propor- 
 
 ti'oposo now 
 
 ii<>; tlie i)riii- 
 
 if it is con- 
 
 sory rights" 
 18 iiuide of 
 rsoiuil prop- 
 " possessory 
 )ii of land." 
 ,re the same 
 liey are, it is 
 ely the same 
 
 )eeii invaded 
 1 taking pos- 
 ipany, as the 
 shed at Van- 
 regarded in 
 {creisc of the 
 >' oecupies no 
 jiti/en of the 
 publie uses, 
 le, on the al- 
 
 L'lined in the 
 Nott ic nun- 
 tion to be re- 
 litary reserva- 
 by the United 
 the Company, 
 reservation iit 
 od therebv, in 
 
 the great a(hlition made to its gcniTul trath', tiiis l)em'lit 
 to tlie C,'oin[)aiiy shouhl be eoiisich-rcd as an eleineiil to 
 be taken into (•oiisi(h'ratioii loi" reduction of (hiniages. 
 
 i'. As danuiges are chiiined for viohition of "jios- 
 sessory rights," the existenee of such rights dei»eiids upon 
 aetnal occiipan.'y, and wliere there is no sueli occupancy 
 tliere is no viohition of such rights. 
 
 4. In estinuiting soeh (hunages, referenee must be liad 
 to tiie precise period at wliich viohition of tlie possessory 
 rights took jihiee. Tlie treaty was in 1840, and for some 
 years after the treaty, the alleged violations of possessory 
 rights did not take place, or if they did so take ]>lace, 
 were of very limited extent. Keferenee should be had 
 to the commencement, ]U'ogress, and extent of such al- 
 leijed violations. 
 
 i). In estimatinir damaiires for such violations of possess- 
 orv riLchts, it is essential to determine the duration of the 
 possessory rights of the Com}»any. And here it is conti- 
 dontly submitted, that such ''[»ossessi -y rights" could not 
 have a longer duration than the existence of the Com- 
 pany's license of trade. The moment that terminated, 
 the Company's possessory rights to land were at an end. 
 
 It is perfectly clear, as a legal proposition, that the only 
 legal authority the Company had for exercising functions 
 as a corporation in the territory south of tlie4t>th parallel 
 was theUritish licenseof tra<le, itsoi-iginal charter limiting 
 its operations to the country around Baffin's Bay. When 
 that liceiise ended, the Company, so far as this territory 
 was concerned, ceased to have an\ rights. 
 
 That the revocation of that license of trade in 1851), 
 made by the British Crown, was lawful, is to be taken 
 for granted in these proceedings. To suppose that the 
 Com[)any could continue to function as such after the 
 revocation of its license, would, as already shown, in- 
 volve this singular condition of things, — that it could be 
 vital in the United States when it was dead in Bi-itish 
 (-oluml)ia. 
 4 
 
mSibsuaiauuuBassmi 
 
 l'C 
 
 W 
 
 .1:1. m 
 
 'M 
 
 Y 
 
 \\Bv/m 
 
 $iV,i 
 
 Furtlicr, if its durjitioii was not liiniti'tl I»,v tlio ntvtKui- 
 tioii of its liceiiHO of trade, then no limit could be as- 
 signed to its existence in the United States, und it woidd 
 be perpetual. A consecjuence «o unreasonable shows 
 that the existence of the ('onipany in the United States as 
 u funetioninii^cor}»oration, needinii; tlie possession f)f land, 
 and hence havinn' possessory riu:hts, nnist bi> limited to its 
 license of trade. 
 
 0. It is submitted further, that the Company cannot 
 claim damages for buildings left by it in the territory. 
 The Company were entitled to liave tlieir possessory rights 
 rcspe(!ted. This would implv a right to compensation, 
 where those rights were violated during their existence; 
 but wlieii the possession of the Company ceased in hxw, 
 in 1850, they no longer liad any possessory rights, and 
 having no sucli rights, they are o"" course not entitled to 
 compensation for them. The p'lny cannot, in any 
 
 point of view, be regarded in a n.-we favorable light, so 
 far as payment for improvements made by them is con- 
 cerned, than licensee tenant for term of years. Such li- 
 censee tenant, on the termination of liis license or lease, 
 is not etititled to be paid for improvements. 
 
 The improvements were of no use to the United States, 
 and the Company had been free to sell the buildings, at 
 least, for their own benefit. 
 
 (B.) — Vau'e of Posts. 
 
 With these preliminary observations, we now propose 
 to consider the evidence of value of the posts mentioned 
 in the memorial, in reference to which the Company 
 claims damages. 
 
 We would remark in the threshold, that the evidence 
 of the Company, in reference to these posts, is taken as to 
 their fee simple value. This theory of estimation we con- 
 sider entirely erroneous, because, as we conceive the case, 
 there is no pretence of right on the part of the Company 
 to claim a fee simple title \u these posts. All that it 
 
 I n 
 
 m 
 
 J 
 
'21 
 
 iild be iiH- 
 (1 it would 
 bio shows 
 (I States i\A 
 on of liiiul, 
 nited to its 
 
 any caimot 
 c territory, 
 ssorv rii!:hts 
 fipensation, 
 • existence ; 
 ised in law, 
 ri,ij:lits, and 
 ; entitled to 
 not, in any 
 )le light, po 
 liem is con- 
 's. Such li- 
 lae or lease, 
 
 iiited States, 
 buildings, at 
 
 low propose 
 s mentioned 
 le Company 
 
 the evidence 
 s taken as to 
 ition we con- 
 eivc the case, 
 he Company 
 All that it 
 
 is entitled to is "iiosscssory rights" in these posts, iind 
 these '"possessory rights." wo conceive, are limited in point 
 of duration to the continuance of the liceiis" to trade, 
 or in other words, from 184<I to 1S")J>. And any valuation 
 of damages must, we insist, in any event, be restricted to 
 this period or some part of it. 
 
 Before treating the evidence in detail, wo invit<f atten- 
 tion to the unusual high standard of the witnesses intro- 
 duced on thejtartof the Tni ted States, on this general (|Uos- 
 tion of the value of the various posts. It is rarely that in 
 anv case there can be found such an arrav of witnesses, 
 whether we consider their high character or their intelli- 
 gence. A list of witnesses, among which appear such 
 lumies as Vlysses S. Grant and 1*. II. Shondan, is rare; 
 men whose names have become historical : the first, called 
 by a great Republic to oe its ('hief Executive. 
 
 Then, the witnesses for the United States are free from 
 the bias of interest. On the part of the witnesses for the 
 Company, it is to be remarked, a very large [lortion are 
 indeutitiod in interest with the Com})any. The principal 
 and more intelligent witnesses, as Sir dames Douglass, 
 Messrs. McTavish, Anderson, Charles, McDonald, Mc- 
 Kenlay, Tugo, and W^ark were otHcers of the Company, 
 and had a direct interest in swelling the recoverv. We 
 do not need to sav that thev knowiuglv made false state- 
 ments; it sutHces to say that tliey are the very parties in 
 interest, speaking under a bias, which almost uncon- 
 sciouslv would disturb their iudgnient. 
 
 Others of the witnesses had been in the Company's ser- 
 vice, and look at things through a more or less preju- 
 diced medium. 
 
 It is worthy of remark, that the principal portion of the 
 Company's witnCvSscs iiave had more or less close atfilia- 
 tion with the Con>pany, and are more or less therefore 
 prejudiced in favov of the Company. 
 
 We shall refer to this point more particularly hereaf- 
 ti-r. 
 
' ( "(Tr- 
 
 m^^mmm 
 
 ■Is 
 
 I I 
 
 I > 
 ( 1 
 
 T 1 I'i: 
 
 1:ti;:.. 
 
 TIkj valuation placed on tlie various posts by the Com- 
 pany's witnesses startles l)y its preposterous extravaG^anee. 
 Ert'ec'tual refutation of this valuation is fni-nished by the 
 evidence for the I'uited States, to which we invite atten- 
 tion, and to wliioli we propose to add a Tew brief coni- 
 nientaries. 
 
 \'Ax\couvj:r. 
 
 Aidveny resi'ards $20 an acre as suffcient for 640 acres 
 at A^a'^couver now, (1866,) since otlier places developed. — 
 (U. 8. Ev., pt. 1, p. 56.) All the bottom lands overflowed, 
 more or less. The land is heavily timbered. — (p. 08.) 
 Farmers on ('oluml)ia bottoms have not prospered, be- 
 iiiii' drowned out bv floods. — ()). oD.) 
 
 Dcady thinks Company's claim at A'ancouver, without 
 reference to improvimients or town-site, \\ould be worth 
 from $1 to 8B per acre.— (U. S. Ev., pt. 1, p. 100.) 
 
 Llovd Bi'ooke values 640 acres, includinii; town-site at 
 Vancouver, at $20 an acre. — (U. ►<. Ev., pt. 1, p. 1.^1.) 
 Values the mile square, inciudinii; military reserv(i at II. 
 B. Company's post, ])art at .i^lO ah acre, part less than 
 government price. — (p. lo2.) The Harney place, near 
 the reserve, with a btiildiug on it. costinii- $2,000, con- 
 tainim^ 110 acres, oiiered lor .*2,000, and no purchaser. — 
 (p. l-]2.'l Mill i)lain, not worth more thaii government 
 price. It '-■ "'ory poor tind gravelly. — (p. 182.) Two-thirds 
 of foui'th plain wouhl bring $5 per acre. The wliole of 
 lower })lain worth $20 an acre. Saw no gang saw in the 
 mill, though he measured lumber therein 1840. — (p. 132.) 
 
 Oidy use'Com[)aiiy's buildings could be put to was for 
 storing bay. — ([). loo.) Leased the mill, in 1840, for a 
 trifling amount. — ([>. I06.) Cost of buildings to Com}»any 
 tritling, us walls were of refuse lumber, and th<! wages [)aid 
 were a- pittance. — ([>. 1;»1».) No other stock than slice]) 
 could be kejit for any length of time on the plains near 
 Vancouver, which were above overflow. — (p. 141.) 
 
 An acie of laud, in forest, back of X'ancouver, could 
 not Ik* thnroiiiiliK- clcand and '.rrubbed fop h.^ss than 
 
 gr: 
 gi- 
 
 tlii 
 \n 
 
 tin 
 
 
•2fl 
 
 y the Coin- 
 ravaf^anec. 
 hod b;- tho 
 ivitc atten- 
 bi-icf com- 
 
 »r 640 acres 
 iveioped. — 
 overtlo\ve(l, 
 l._(p. 58.) 
 )spcred, l»e- 
 
 •er, without 
 (1 he worth 
 100.) 
 
 town-site at 
 . 1, p. 131.) 
 3serve at II. 
 •t less than 
 place, near 
 $2,000, eon- 
 )urchaser. — 
 government 
 
 Two-thirds 
 lie whole of 
 g saw in the 
 .»._(p. 132.) 
 It to was for 
 
 1840, for a 
 to Com}>any 
 (! wages paid 
 k than slieep 
 L' plains near 
 . 141.) 
 
 ■ouver, could 
 or less than 
 
 <^150. — (p. 151.) Doubted about \'aneouver as a to\ n- 
 site, because of the limited extent of farming land near, 
 and the shifting of the bars in the Cobunbia. Buildings 
 destroyed by nilitary, were utterly worthless. — (p. IhS.) 
 The Company allowed free use of the government wharf, 
 and no comparison l)etween it and Com[tany's old jetty. 
 —(p. 156.) 
 
 Buck. In 1846, no buildiugs on Sauve's island, except 
 two snudl log cabins, costing iijjout i^UW. No farming 
 on island. Only a snudl garden. — (p. 210.) 
 
 Love. Values tlie huid on Cohnnl)ia, below tlie reserve, 
 and including lower plain, at C5 an acre. — (p. 2;56.) 
 \'alues tlje 640 acres of reserve at $8 an acre. — {\). 237.) 
 A'alucs town-site, running a mile back from the i-iver, at 
 $50 an acre. — (/6.) Values land, along river, above 
 reserve, including mill-site, a mile in width, at $2 per 
 acre. — (//>.) 
 
 Douthet. Mill built by Company, in 1852, was worth- 
 less, but for the iron. — (p. 244.) It cost more to keep 
 the mill running than the profits amounted to. — (p. 245.) 
 Company, in 1852, quit running mill because it was 
 unprofitable.— (p. 245.) In 1852, saw remains of old 
 u-anii: saw-mill. It looked as if it had fallen down. Tho 
 grist-mill was in decay. — (p. 245.) The whole value of 
 grist-mill consisted in burrs and irons. Comiiany car- 
 ried off snnill set of burrs to Vancouver island. — (p. 245.) 
 There was another old saw-mill, which had been aban- 
 doned in 1852, and machiu'^ry taken out. — (//;.) Com- 
 pany's buildings would ouiv be useful as l)arns or sta- 
 bles. They had no valv). Hinee Company abandoned 
 them, they have not been occupied, except Government 
 used them to put' hay and straw in. — (p. 246.) Thinks 
 Company took doors and windows away. Taking the 
 first afi a central point, 1,020 acres, exclusive of buil- 
 dings, would be worth $10 to $15 per acre.— (p. 247.) 
 "\ alues 3,200 acres, on lower plain, having frontage on 
 th(> I'iver for five miles, at $5 to :?7 per i\vn\ excbisiv'c of 
 
liflYW' 
 
 BES 
 
 :{() 
 
 ! ,1 
 
 I \ 
 
 m 
 
 improvements. — {ih.) The greater portion of this last- 
 mentionc-d land is subject to annual overflow. — (p. 247.) 
 Values tract below the last-mentioned land, ten miles 
 long and two broad, at same rate, from $5 to $1 per 
 acre. — (ib.) Values land above, including town-site, 
 running 6 or 7 miles along Columbia, and 3 miles wide, 
 embracing mill-plain and mill-sites, at $2 an acre. — {ib.) 
 Values countrv, back of tbe first, including six miles in 
 width, at ^2 an acre. — (p. ^48.) Expense of clearing and 
 ditching land is $f)0 an acre. — (p. 24'J.) Values water 
 privilege at grist-mill at from ^1,000 to $2,000.— (p. 2r,0.) 
 Values water-power, at saw-mill, at same price. — [ih.] 
 Overflow spoils the grass. — (p. 251.) Good grazing land 
 can be got, from 15 to 20 miles from Vancouver, at gov- 
 ernment price. — (p. 255.) 
 
 Applegate. Found, in 1866, only a few ruins, of no 
 appreciable value. — (p. 270.) 
 
 Applegatos values 640 acres, embracing tbe town and 
 fort, at $50 per acre. The 640 acres next surrounding 
 tbe first named 640 acres at $4 or $5 an acre, and tbe re- 
 mainder of country at $1.25 currency, ViO cts in gold. — (p. 
 279.) Tbe entire tract of land on wliicb Company's post 
 stood lias been increased in value 50 or $60,000 by the 
 establishment of a military post and a town, and not 
 from Company's miprovement. — (p. 270.) 
 
 Kinearson adopts report made by himself. — (Applegate 
 and Carson, p. 817.) 
 
 Carson adopts report made by himself — (Applegate 
 and Kinearson, p. 356.) 
 
 Belden. Engaged in surveying railroads in Oregon. — 
 (p. 380.) Never regarded Vancouver as a railroad point, 
 because considered the south side of Columbia the bettor 
 side for railroads from tSnake river down Columbia val- 
 ley.— (p. 300.) 
 
 Gen'l Ingalls. Went to A'ancouvcr in 1840. — (U.tS. Ev., 
 pt. 2, p. 1.) Very small part of claim enclosed. — (p. 2.) 
 The proportion of the whole claim really occu[»ied wa?^ 
 
 to 
 cc 
 lai 
 wo 
 
 I'l 
 
 wo 
 
 tl 
 
 up 
 
 CO) 
 
 bu 
 the 
 mi 
 
 It) 
 
31 
 
 of this last- 
 V.— (r- 247.) 
 I, ten miles 
 5 to $7 per 
 2: town-site, 
 miles wide, 
 11 acre. — (ib.) 
 six miles in 
 clearinijand 
 ralucs water 
 
 io._(p. 2r>o.) 
 
 price. — {ilj.) 
 li'raziiig land 
 liver, at gov- 
 
 ruins, of no 
 
 the town and 
 surronndiiiu' 
 e, and the re- 
 ^ in gold. — (p. 
 •mpany's post 
 0,000 bv the 
 own, and not 
 
 — (Applegatc 
 
 . — (Applegato 
 
 s in Oregon.— 
 •ailroad point, 
 ibia the better 
 Columbia val- 
 
 ty.__(U.t?. Ev., 
 
 losed. — (p. -.) 
 
 occu[>ied was 
 
 small. — (p. ^>-) Buildings very dilapidated in IHGl. — (//>.) 
 A'ancouver, while witness was there, was a mercantile 
 establishment; Company did some farming and bought 
 sonic furs, but was really engaged in general trade. — (p. 
 4.) In 18(i0 the buildings were of no value to the United 
 States. — (p. 5.) The military authorities would rather 
 have had the ground cleared of the buildings. — {ib.) 
 
 Settlement of country brought into being many com- 
 j)eting trading establishments, in competition with which 
 Hudson's Bay Company could hardly succeed. — (U. S. 
 Ev., Part. 2, p. 0.) The fur trade gradually fell to 
 nothing. — (ib.) In 1860 land in town of A'ancouver 
 was worth from $100 to |!1000 an acre. — (p. 7.) In 
 1860 bought ten acres in town of A^ancouver for $1,000, 
 and lately sold it for the same. — {ib.) No increased value 
 in lands at Vancouver from 1860 to 186-3.— (//>.) Thiidvs 
 it im])rol)able a large town can be built at \ ancouvei*. — 
 (p. 8.) Thinks land would at one time have sold highev 
 than now. — {ib.) Inundations render lands near \'ancou- 
 ver on the river precarious for agriculture. — (10.) Over- 
 tlow does not improve rasturage. — (p. 14.) 
 
 Gen'l Grant. The inajority of the bottom land subject 
 to overflow in June and July, and lor that reason not sus- 
 ccittible of cultivation. — (U. S. Ev., i>t. 2, ]>. ID.) The 
 land not subject to overflow was [irincipally densely 
 wooded, and my impresion was, it was very I'oor. The 
 ])lains were comparatively snudl prairies in this densely 
 wooded country. The woodland could not be worth any 
 thing to the Hudson's Bay Coni[>any as a trading post. 
 — {ib.) The buildings were such that soldiers could j>ut 
 up rajddly, the materials being near at haixl. — (p. 21.) 
 
 Senator Xesmith. The stvle in whichl) uildiuojs at Va!i- 
 couver built, the Canadian style, is not durable. The 
 buildings in 1843 were becoming dila[»idated on account of 
 the insufficiency of foundations. — (p. 23.) l»uildings 
 might have been built bv the commonest kind of lal)or. 
 Tn the last ten or twelve vears the huildiiiirs have L'"one to 
 
 I 
 
 J 
 
fJli 
 
 «'!■ 
 
 (looay very rapidly, and wlieii 'witness was last there in 
 1(S(I5, tiiey had nearly all rotted down. — (p. 24.) Very 
 slight improvement in town of Vanconvcr in last five 
 years. — (p. 25.) Does not believe there will be any great 
 improvement for many years. — {ib.) Portland is the em- 
 porium of Oregon and East Washington ; its great wealtli 
 and importance will prevent a town of conse(|uence grow- 
 ing np at Vancouver. — (p. 26.) 
 
 Steinberger. Owned one-half of ten acres in town of 
 Vancouver at most valua])le point thinks in town ; bought 
 at time of greatest expectation as to future of town, cost 
 $100 an acre. — (p. 53.) Thinks this property of less value 
 now than when bouglit. — (ib.) Vancouver not likely to 
 be an important point. — (p. 53.) 
 
 Wagner, In 1<S57 buildings old and some very mucli 
 dilapidated. — (p. 59.) In 1861 buildings not worth over 
 6 or ^8,000. — (p. 60.) Wharves in front of A^'ancouver 
 would not accommodate sea-going vessels except in liigh 
 state of water. — (p. 62.) Portland has destroyed [)rospect8 
 of Vancouver. — [ib.) Shoal in front of Vancouver ren- 
 ders it ineligible for town-site. — (p. 67.) 
 
 Howard. Shoalwater at a growing shoal, sufficient to 
 destroy tbe^dace as a town-site forshipi»ing. — (U. S. Ev., 
 2 pt., 1). 60.) 
 
 Barnes. Jiuildings utterly valueless in 1860, except 
 for Company's purposes. — (p. 70.) As one of a board 
 estimated buildings when abandoned by Company at 
 $1)00.— ( p. 75.) 
 
 Gen'l McKeever. As memberof board valued buildings 
 at A'ancouver in 1860 at about $1,000.— (p. 78.) Never 
 valued Vancouver as a commercial point, because no back 
 country; the forests are dense, don't think it would pay 
 to clear them. — (p. 79.) In 1860 the buildings at A^incou- 
 ver not in a habitable condition ; don't think any one 
 wanted them except for the lumber. — (p. 81.) First board 
 valued certain buildings at |i250. — (p. 82.) 
 
 (ten'l A. .1. Smith. \'alued buildinirs in 1861 of Coni- 
 
 i 
 
on 
 
 last there in 
 .. 24.) Very 
 I' in last five 
 be any great 
 id is the em- 
 great weal til 
 (luencegroAV- 
 
 es in town ot 
 own ; bought 
 of town, cost 
 ^ of less value 
 not likely to 
 
 le very much 
 it worth over 
 if Vancouver 
 xcept in liigli 
 yed [irospects 
 incouver reii- 
 
 , sufficient to 
 .— (U. S.Ev., 
 
 1860, except 
 e of a board 
 Company at 
 
 ued buildings 
 , 78.) Never 
 cause no back 
 it would pay 
 ffs atA'^ancou- 
 link any one 
 ) First board 
 
 1801 of Com- 
 
 pany inside their stockade at Vancouver for government 
 purposes at $52-30. — (U. S. Ev., 2 }»t., p. 84.) 
 
 Judge IS^elsou. The buildings in 18r)2, had outlived their 
 day. — (p. 80.) Thinks Portland is to be the great ])lace 
 of Oregon. — (J.b.) Dr. McLaughlin said original cost of 
 buildings \vas $100,000.— (//a) McLonghlin saia before 
 184G, 1,000 to l,r>00 acres under cultivation. Saw-mill 
 and grist-mill tive miles up river. Cattle pernutted to 
 stray wliere they could find pasture. Cultivated land 
 near Vancouver, the rest pasture.— (IJ. S. Ev., l*art 2d, 
 p. 1)0.) 
 
 Gen'l Augur. As one of amilitary board in 1854, valued 
 Company's buildinsrs at A'ancouver, within military re- 
 servation, at $47,r)03. The board valued buildings on 
 basis of what they rented for.— (p. 105.) Col. IJonneville, 
 ofHcer in command military at Vancouver, endorsed on 
 valuation of buildings in i854, "they can stand a short 
 period only when they cease to receive the great care be- 
 stowed upon them." — (p. lOG.) 
 
 General Hardie. The buildings at Vancouver in 1860 
 Avere in state of great dilapidation ; not worth re[»air, 
 having no value except as hewn timber where sound 
 pieces could be found; very much of the timber was de- 
 cayed.— (p. 107.) 
 
 McFeely. In 1858 the buildings at \'ancouver were 
 old, almost uninhabitable, the material being rotten from 
 time and exposure.— (U. S. Ev., Pt. 2, p. 110.) Tlie 
 buildings were of no value to the United States in 1860; 
 if sold at public sale, doubts whether they would liave 
 brought n^,•re than the value of the land, or a trifie niore 
 at least.— (/6.) Buildings independent of the land would 
 not have sold for over 4 or $5,000.— (p. 128.) 
 
 Gen. Vinton. Estimates cost of buildings estimated at 
 rate of wages before gold excitement, at $70.— (p. 138.) 
 Including land enough for buildings.— (p. 182.) 
 
 Uen.Pleasanton. Knew Vancouver 1858-'.m;o. Build- 
 ings out of repair and dilapidated : huildings were rndc 
 
 f) 
 

 ,..L. ,111.11 jaw 
 
 34 
 
 (p. 135,) \\^)nld not have given $10,U()0 lor whole estab- 
 lishment. — {ib.) Buildings of no value. — (p. 186.) Soil 
 around was gravelly and poor. — {ib.) The great objec- 
 tion to having a town above the mouth of AVillamette 
 river was the bar near Vancouver. — (p. 137.) Apart 
 from the increase to the town of Vancouver from trade 
 of the soldiers, the town made no progress. — {ib.) 
 
 (xcneral Sheridan. In 18')') buildings had decay of 
 old age. — (p. 207.) They were three-fourths of a mile from 
 river and of no value as store-houses, because of their 
 location. — (p. 268.) Actual Avorth of buildings but lit- 
 tle; no market for materials. — {ib.) The two store-houses 
 near the river the only buildings witness considered of 
 any value ; they were old and out of repair.^-(p. 260.) 
 
 Admiral Wilkes. In 1841 estimated CDst of buildings 
 at$oO,000. — (p. 280.) Mills badly located ; incapable from 
 backwater of use for most of the season. — (p. 281.) Val- 
 ued buildings on farms and Sauvies' island and mills at 
 $6,000. — {ib.) In 1841 officers of Company chnmed nine 
 miles square at A'ancouver. — {ib.) Estimates present 
 value of the tract of land claimed by Company, except- 
 a mile square around post, at from $1.25 to $1.50 an acre. 
 For fifteen miles the land is submerged for live miles 
 wide, nntit for crops. Above ])Ost some three miles like- 
 wise submerged ; the high prairie is gravelly and thin. — 
 (p. 282.) About eightv s(piarc miles subject to overflow, 
 -(p. 283.) 
 
 So far as the opinions of witnesses are of im[>ortance in 
 estimating value, it is obvious that the opinions of the 
 witnesses for the United States are of more value than 
 the opinions of witnesses for the Company ; for they arc, 
 to say the least, witnesses of as high chiiracter, of equal 
 intelligence, of greater number, and free from any bi.is 
 of interest; in which latter respect they have a great ad- 
 vantage over the principal witnesses for the Company. 
 
 But, fortunately, there are material facts in the evidence, 
 which enable us to form our own estinuite of value more 
 satisfactorily thiui to dc]iond on the opinions of others. 
 
3r, 
 
 .'hole estab- 
 136.) Soil 
 i,Teat objec- 
 Willamette 
 r.) Apart 
 from trade 
 {ib.) 
 
 id decay of 
 a mile from 
 se of their 
 iiLfs but lit- 
 <torc-hoiisea 
 nsidered of 
 -{{). 260.) 
 of buildings 
 •apablc from 
 281.) Val- 
 iiid mills at 
 ilaimcd nine 
 itos present 
 any, except- 
 l.oO an acre, 
 r five miles 
 e miles like- 
 and tliin. — 
 to overflow. 
 
 iiportance in 
 lions of the 
 value than 
 for they are, 
 er, of equal 
 )m any bi.is 
 e a great ad- 
 e Company. 
 ;hc evidence, 
 f value more 
 
 s of OtllOI'S. 
 
 The three elements of value in regard to Vancouver are, 
 1st, the town site; 2d, the buildings; ->d, the lands. 
 
 1. As regards the town-site. There is nothing, about 
 which persons of sanguine temperament, or persons in- 
 terested in particular localities, are so prone to build 
 castlcH in the air as the speculation of town-sites. And 
 this remark' is peculiarly applicable to persons in the 
 United (States. The progress of the country has l>een 
 so wonderful, and certain commercial points have grown 
 with such startling rapidity, that men's imaginations 
 run wild upon the subject. Establishing new towns is 
 a regular business in the new territories. The im- 
 posing title of city is frequently bestowed on a hamlet 
 and blacksmith's shop at a cross-road. Here and there a 
 point well located meets with great success, and what was 
 but yesterday the lodge of the savage is to-morrow the 
 mart of busy commerce. The comjtaratively few loca- 
 tions which succeed are remembered and commented up- 
 on, and the numerous failures are forgotten. The new ter- 
 tories are covered with the skeletons of intended cities, 
 which ]ierished in the hour of their birth, mementoes of 
 the fallibility of human Judgment and the impossibility 
 of roadiuiT the future with certaintv. 
 
 We have in sight of the Capitol an illustration of this 
 folly and delusive hope. Under the administration of 
 President Jackson the foundations of a new city were 
 laid with imposing ceremonies at the termination of the 
 long bridge, on the A'irginia side of the Potomac, to 
 which the imposing title of Jackson City was given ; 
 but the city has obstinately refused to grow, and still 
 exists only ujton paper. 
 
 It is not surprising, therefore, that, in opening a new 
 region to civilization, as the valley of the Columbia, the 
 imaginations of men should have become excited, and be- 
 wildered with the idea of etnbryo cities. We are, there- 
 fore, prepared to find that what we may properly des- 
 ignate as the citv mania,— tin usual lunacv of new coun- 
 
•iww^ 
 
 Ijllilljl 
 
 m 
 
 tries, — took strong hold of people in the vulley of tlie 
 Colnml)iu, and sites for future cities were liberall}' dis- 
 covered along the river. Tiio Company's agents, at 
 Vancouver, were not slow to catch the infection, and Sir 
 -lames Douglas and Mr. McTavisli, and otlier ofHcers of 
 the Company, began to imagine they licard tlie chimes of 
 a liundred stee[>les at A'ancouver, and the roar of a vast 
 current of liumanitv pourinii" into it, to iiudce it the Xew 
 York or London of the great Pacific. It is only in such 
 a condition of mind that we can discover any palliation 
 for the extravagance of estimation of Sir James Douglas, 
 Mr. McTavish, and other of the Com})any'8 officers, 
 which it would otherwise be necessary to impute to de- 
 liberate misrepresentation and false practice. 
 
 Dut the facts of the case very soon pricked this bub- 
 ble. 
 
 In the tirst place, the temporary show of progress at 
 A^ancouver, was owing to the military reservation being 
 established there. This, in a large degree, made Van- 
 couver what it was. But this was only a temporary 
 matter, and could produce but a certain limited result, 
 liable to end at any moment by the removal of the forces 
 stationed there, and should not be taken into consideration 
 as an clement of permanent growth. 
 
 Nature was against Vancouver as a town-site. 
 
 a. There w^as no back country to support a town. Tlie 
 country on which it would depend for support, was either 
 subject to inundation, or overshadowed by a continuous 
 forest, whose vast growth defied the labor of civilization 
 to reduce it to cultivation, except at an expense so enor- 
 mous as did not justify the undertaking. 
 
 b. The bar in the Columbia impeded navigation to such 
 an extent as to render Vancouver unfit for a commercial 
 site. 
 
 c. Then, Portland, nearer the sea, and at the mouth of 
 the Willamette river, possessed such superior advantages 
 that it entii'cly ct-lipscd Vancouver. 
 
 i 
 
87 
 
 alloy of the 
 iborally dis- 
 5 agents, at 
 ion, and Sir 
 er oflieors of 
 ho cliimos of 
 )ar of a vast 
 i it the Xew 
 only in such 
 ly palliation 
 les Douglas, 
 iv's officers, 
 iiputo to de- 
 ed this bub- 
 
 ■ [)rogross at 
 vation being 
 , made Van- 
 i temporary 
 mited result, 
 of the forces 
 onsideration 
 
 site. 
 
 town. The 
 •t, was either 
 II continuous 
 f civilization 
 LMise so enor- 
 
 ation to such 
 I comniereial 
 
 the mouth of 
 r advantatrcs 
 
 (I. Then, the south side of the Columbia is better for 
 railroads. 
 
 Weighed down by iidierent disadvantages, and su])- 
 ])lanted by a rival more favored by fortune, Vanoouvor, 
 then, has been a failure as a town-site. Tliis, of course, 
 implies a corresponding fall in the prices of land at the 
 place, which we are informed, in the evidence, has been 
 the case. 
 
 2. As regards the Company's buildings at Vancouver, 
 in valuing them we are mot with several stubborn facts. 
 
 a. As far back as 1H4>3, according to the evidence of 
 the Hon. Mr. Nesmith, the buildings were dilapidated. 
 This condition of decay of course increased with age 
 and the neglect of the Company, until, upon the even- 
 tual abandonment of the buildings by the Company, 
 
 . they were, as the evidence states, but little more than a 
 mass of ruins. 
 
 b. Again, it is in evidence, that the buildings were 
 unsuited to any business except the Company's. They 
 
 { l)ossessed, therefore, no exchangeable value. The Com- 
 l)any had no further occasion to use them for the oriirinal 
 
 , purposes for which they were constructed, and no one 
 else had any use for thorn. They were, therefore, of lu) 
 
 :; value, other than the trilling value of the materials. 
 And, in this point of view^ it is immaterial what those 
 
 . buildings cost. The question is, what were they worth 
 when the Company ceased to occupy them? 
 
 3. As regards the lands around Vancouver. 
 
 The nature of those lands is precisely explained to us, 
 in a few words, by Gen. Grant, lie says "the great 
 majority of the bottom land was subject to overflow. * 
 "" * That not subject to overtiow was »iousely wooded, 
 and very poor. The woodland was, I think, not worth 
 anything, except the value given to it by settlement." In 
 t'lese few, and pointed words. General Grant lias daguor- 
 reotyped the country, so that we may see it with our own 
 joves. 
 
.)0 
 
 I' 
 
 
 til' 
 
 f^ 
 
 V 
 
 a. The country is in tliis most imibrtiiniite roiidition : — 
 tlie upliuids lire silinost univorsally covered with heavy 
 and dense forests, wortli nothinsjj as mere timber, owiny 
 to the cost of transportation, and so expensive to clear, 
 especially as the hind when cleared was very i)Oor, that it 
 is ruinous to clear it. In short, in these vast forests 
 around Vancouver, as iti the forests of the Amazon, na- 
 ture seems to raise insurmountable obstacles to the pro- 
 gress of human settlement. Forests seem to frown aus- 
 terely on civili/ed man, and appear to repcll cultivation. 
 
 h. The lowlands are subject to oversow during the 
 summer months. The water at the time of overflow is 
 cold, between 40 and 00 degrees, a temiterature unftivora- 
 ble to vegetable nuitter, and the deposit is not fertilizing, 
 being sand produced by attrition of rocks. Half the 
 country is permanently occu[tied by sloughs and ponds. 
 The overflow is neeessarily ruinous to agriculture, as it 
 often continues from May until August. It also injures 
 the grass, which, there, has less time to grow in, and is de- 
 8tro3'ed during the best growing months of the year. It 
 is difHcult to estimate the injury caused by the annual 
 inundations. 
 
 In view of these facts, we are not suri>rised to learn that 
 the settlers in the bottoms have not prospered. It would 
 be very strange if they did. 
 
 c. The mill was built in 1841) for a trifling amount. 
 Ilunning of the mill did not pay expenses. The mills 
 were badly located, subject to the influence of the over- 
 flow of the river, and thus liable to long stoppages. 
 
 From a consideration of these various controlling facts, 
 wdiich are indisputably established by the proofs, it is 
 evident that a very low valuation must be placed on the 
 Company's claim at Vancouver. 
 
 Cowlitz. 
 
 It is difMcult to see ^^ hy the Company should claim any 
 thing for this post. 
 
00 
 
 (.'Oiulition : — 
 3(1 with hoavv 
 imbcr, owiiiu' 
 sive to clear, 
 y poor, that it 
 3 vatst forests 
 
 Amazon, mi- 
 les to the pro- 
 
 to frown aus- 
 sll cultivation. 
 \x during the 
 of overflow in 
 ture unfjivora- 
 lot fertilizinii', 
 ks. Half tlie 
 hs and ponds, 
 riculture, as it 
 it also injures 
 ' in, and is de- 
 ' the year. It 
 by the annual 
 
 d to learn that 
 •ed. It would 
 
 itling amount, 
 es. The mills 
 le of the over- 
 ■itoppages. 
 ntroUing fact:^. 
 e proofs, it is 
 I placed on the 
 
 ould claim anv 
 
 1. The Company were not disturbed in their occupa- 
 tion. 
 
 2. It became of no use to the Company. 
 
 J3. I'art of the buildings were v/ashed away, the re- 
 mainder sold by Company. 
 
 Tolmie. Warehouses at Cowlitz no longer of use when 
 nothing raised at Cowlitz farm; one was destroyed by 
 caving in of the bank, the otlier was sold by Company's 
 agent.— (U. S. Kv., i)t. 1, p. 104.) 
 
 Huntington. Buildings i)ulled down and used by wit- 
 ness. Bought them from an agent of Comi)any for $75.— 
 (p. 39.5.) 
 
 Howard. Post was being washed awav.— (U. S. Ev., 
 pt. 2, p. 68.) 
 
 Wilkes. No station of Company at Cowlitz in 1841. 
 — (p. 277.) The place is low, and subject to overflow 
 from both rivers. — {il>.) 
 
 ('. T. Gardner. Conipany had a store there; it was a 
 log house about 30 by 15. Xo wharf.— (p. 325.) 
 
 McTavish. Company not disturbed in its occupation 
 at Cowlitz post.— (Miscellaneous Ev., p. 155.) 
 
 Fort (jeoiuje. 
 
 It appears, from the evidence, that the Company is en- 
 titled to nothing here. 
 
 1. The Company's buildings, at Fort George, were 
 worth but a tritle in 184G. 
 
 2. That the Company abandoned the post in 1846 or 
 1847, and that the buildings rotted down, and were 
 removed. 
 
 3. Buildings dilapidated in 1841 and 1844. 
 
 Gray. Buildings worth nothing in 1846. Company 
 left them in 1846 or 1847, and they rotted down, and 
 were removed.— (r. iS. Ev., pt. 1, p. 166.) Two acres, 
 round old fort, worth $1,000. In 1846, worth half this 
 sum. — (p. 167.) 
 
; ' ^ilffyfTii" 
 
 -10 
 
 Suininors. l)Mil(Vm.2:s in 184(1, wortli .*?')()(). Two 
 acres of land, round tlio fort, worth .<?100 an aero. — (j». 
 im.) In 1850, buildings at worthless.— (p. 194.) 
 
 Taylor. Buildings, i^i 184(5, worth from W^O to $700. 
 — (p. 1!>7.) Land occupied by Fort worth, in 1840, .$10(1 
 to $150 an acre. — (p. 108.) 
 
 Welch. In 184t), buildings old, scarcely fit to live 
 in, worth from $500 to $800. Land at fort, two acres 
 cleared, cost about $300 an acre to clear it. — (p. 208.) 
 Buildings rotted down partly, renuiinder occupied by In- 
 dians, who destroyed them. — (p. 204.) 
 
 Nesmith. At Fort George, in 1844. There were 
 then two or three old buildings, and small patch of 
 enclosed ground; buildings dilapidated, they might have 
 been worth $100 or $200. A village has sprung up below 
 old post.— (T. K. Ev., pt. 2, p. 29.) 
 
 Nelson. McLaughlin says Couipany had post at in 
 184(J; no farm — a garden. — (p. 100.) 
 
 Admiral AVilkes. Post dilapidated Ui lh4l. — (p. 275.) 
 Two acres enclosed. — [ih.) 
 
 Buildings cost $500 or $000, and the two acres en- 
 closed worth $20 or $25 an acre. — [Ih.) 
 
 Gilpin. In 1844, only a single building. Only trade, 
 salted salmon. Values buildings at $1,200 to $1,500.— 
 (p. 339.) 
 
 Swan. In 1852, no vestige of any post here. — (p. 243.) 
 
 Feale. Buildings at in 1841, worth not over $500 or 
 $000.— (p. 345.) 
 
 Gibbs. In 1849, buildings four in number, common 
 log huts, ver\' much out of repair. Company had aban- 
 doned it as trading post. In 1850, Maj. Hathaway put 
 buildings in some repair. — (p. 400.) Company never 
 occupied post after Maj. Hathaway left, in 1851, and 
 buildings rotted down, or were torn down by claimants 
 of the land. — (p. 401.) In 1853, buildings of no value.— 
 (ih.) No Indian trade there in 1850. — {ih.) 
 
^ 
 
 1 
 
 ^rm. Two 
 
 xi\ acre. — (p. 
 1!>4.) 
 
 S;500 to870o. 
 
 inl840, .l^lno 
 
 Iv tit to live 
 I't, two acres 
 it.— (p. 208.) 
 Mipied by Iii- 
 
 Tliere were 
 lall patch of 
 y niiglit have 
 ing up below 
 
 1(1 post at ill 
 
 41.— (p. 275.1 
 
 Avo acres eii- 
 
 Only trade, 
 ) to $1,500.— 
 
 ire.— (p. 248.) 
 ; over $500 or 
 
 ber, common 
 my bad abaii- 
 rlatbaway put 
 nipany never 
 in 1<S51, and 
 by claimants 
 >f no value.— 
 
 41 
 
 Chinook or Pii,i,aij Iiock. 
 It ai)pears that iiotlnng is clainjable lioi'o. 
 
 1. The Company never occnpied this station. 
 
 2. In 1840, the buildings were worth about $1(10, and 
 the land so valueless as not yet to he taken up at gov- 
 ernment price. 
 
 Tolniie. Fishing shition not oceujiied by Conipanv.— 
 (U. ►S. Ev., pt. 1, p. 100.) 
 
 Gray. Was at Chinook in 1844 and 1840. Saw 
 nothing.' thei-e but tein[)orary sheds, and a ivw tanks for 
 salting salmon. Comi)any abandoned it in 1840 or "48. — 
 (p. 105.) 
 
 Taylor. Building worth about $100 in 184!>.— (p. 100.) 
 Land at not worth over government price, as no one 
 has taken it up. — (p. 100) 
 
 Welch. In 1840, buildings worth $:]()()._(p. :i04.) 
 It did not cost that much.— (//y.) Land worth nothing, 
 except as lisbing station. — (p. 205.) 
 
 Wilkes. Company, in 1841, had no station nearrillar 
 Rock.— (U. S. Ev., 2 pt. p. 277.) 
 
 Gibbs. Kever knew of Company occupying station 
 there or claiming it. In 1850, it was occupied by llensill, 
 American citizen.— (p. 402.) Oidy building, a drying 
 shed, such as Indians are in habit of constructing for their 
 own use. — (p. 402.) 
 
 Cape Disaitointment. 
 
 It appears from the evidence that — 
 
 1. The Company had no possessory rights of any kind 
 at or near the Cape in 1840 or prior thereto. Such being 
 the case the Company have no claim in regard to this 
 locality. 
 
 2. The building occupied by Kipling, the only build- 
 ing the Company appear to have any claim to, was more 
 than a mile from the Cape. 
 
 8. The only possessory rights the Company could 
 possibly have to a location near the Cape, and that ac- 
 
 
■ ||iii[ii:r';'ir 
 
 42 
 
 ||!|l|i'i1' 
 
 (luircd after 1S40, is to tlio KipHiii;: lionso and tlio spot 
 of land on winch it was built. The valuation of this 
 houBO and spot of ground is insignificant. 
 
 4. ^.1 no event would land taken for government pur- 
 ])o,es be valued at speculation prices. A fair and rea- 
 sonable valuation would be the correct I'ule. 
 
 Gray. Was at Cajte Disappointment in 1(S44 and 1846. 
 Buildings cost about ^SoO.OO.— (U. S. Ev., pt. 1, p. 107.) 
 G40 acres round worth nothing for agricultural purposes. 
 If worth anything witness would have occupied it. — (ib.) 
 House built'after^846.— (p. 186.) 
 
 Summers. McDaniel, in 1845 or 46, took claim. 
 Wanted witness to draw deed for it to Mr. Ogden. — (p, 
 193.) 
 
 Taylor. In 1851 saw building there, said to have been 
 put up for Mr. Ogden. It was unfinished. Cost be- 
 tween $200 and ,§:300.— (p. 199.) 640 acres of land 
 would not be worth over $1.25 an acre. — (ih.) 
 
 Xesmith. Was at Cape in 1849. Saw nothing but 
 some Indian huts. — (U. S. Ev., pt. 2, p. 30.) Knows of 
 no value for this place but lor light-house and fortifica- 
 tions. — (ih.) 
 
 Steinberii'cr. In 1850 saw an old buildinc; of verv 
 little value. A\'rv little cleared land around it. — (p. 53.) 
 
 Ilowjird. Saw nothing at Cape in 1853 but a fish- 
 house. — (p. 68.) 
 
 Nelson, McLoughlin said Company established post 
 there in 1847. Ogden took claim there. — (U. S. Ev., pt. 
 2d, p. 100.; 
 
 AVilkes. Ir. 1841 no post or building or person at 
 Cape. Five hundred dollars would be a high price for 
 land for fort and light-house. — (p. 277.) Light-house 
 only useful to indicate position of Cape at night, not for 
 entering river. — (p. 290.) 
 
 Davidson. In 1851 would not have paid governmeiit 
 price for land. Saw no indications of occupation hy 
 Company.— -(p. 307.) Land for lightdiouse not wortii 
 
 ■§ 
 
13 
 
 1(1 tlio spot 
 tiou of this 
 
 nmcnt piir- 
 lir luul rea- 
 
 44 and 1846. 
 t. 1, p. 167.) 
 •al purposes, 
 led it. — (ib.) 
 
 took claim, 
 Ogdeii. — (p. 
 
 to have been 
 I. Cost be- 
 res of land 
 
 ) 
 
 nothing but 
 
 I Knows of 
 
 md fortifica- 
 
 ing of very 
 [ it.— (p. 53.) 
 3 but a lish- 
 
 ,blished post 
 IT. S. Ev., pt. 
 
 or person at 
 
 gh price for 
 
 Light-house 
 
 ight, not for 
 
 government 
 scupation by 
 se not wortli 
 
 over governnuMit ]trico.— (p. 308.) Land enough lor 
 liglit-house not wortli over $10.— (/A.) Entrance of Co- 
 luml)ia niost dangerous. Knew of vessel lvin<«' oH' 40 
 days })efore entering. — (p. 300.) 
 
 Harrison. Surveyed Cape ir 1851. Saw no l)uildin<rs 
 or ruins or cultivated land. Land not wortli goveriiincnt 
 jirice.- (p. 313.) About 3 or 4 acres needed for light- 
 house. Worth for public use government j)rice. — (p. 3>i4.) 
 Kipling living in log house worth considerably less than 
 .^1,000. Light-house important only to hold on by at 
 night, —(p. 315.) Donbts whether Cape proper place lor 
 light-house. — (p. 317.) 
 
 Swan. Visited leaker's Bay. Never Heard of any 
 claim at Cape by Company. — (p. 343.) 
 
 Peale. Xo tract at Cape containing 640 acres tit for 
 cultivation.— (p. 344.) In 1841 no building or prepara- 
 tion for l)uildinii'. 
 
 McMurtrie. Visited a house in 1850 a mile or more 
 from Cape or Baker's Bay, said by the man in charge to 
 iiave belonged to Comitany. This house of hewn logs, 
 30 l)y 20, one story. Could not have cost over $300 or 
 i?400. — (p. 373.) Saw no cultivated ground about this 
 house. — (ib.) Xo value could be attached to the laml on 
 Ciipe. — {lb.) 
 
 Gibson. Cape rocky, with thin soil in most places. 
 Land valueless except for timber, of which country is full. 
 Saw small house some distance from Cape. House not 
 worth over $500. — (p. 376.) Light-house important to 
 make and hold on by, but light-house at Point Adams 
 more important. — (]>. i76.) 
 
 Gibbs. Never saw or knew of trading post of Com- 
 pany. — (p. 402.) 
 
 McTavish. Umible to say whether C-ompany had done 
 anything at Cai)e befor< 1846. Found Kipling there in 
 1846, "in a kind of log cabin." — (Miscellaneous p]v., }). 
 157.) 
 
I ' I"! I nil 
 
 ^\^T 
 
 44 
 
 
 IV:' 
 
 CuAMPOKli. 
 
 It appears from tlic evidence — 
 
 1. That tlie buildings Avere washed away and rotted 
 down. lender tljis state of facts the possessory rights of 
 the Company in tlicsc buildings are of no value. 
 
 2. Tlie land, after the flood, is only valued at ^5 an 
 acre. 
 
 3. The Company claim for certain lots purchased of 
 American settlers. This item, it is submitted, does not 
 come vv'ithin the provisions of tbe treaty. 
 
 Buildings washed away or rotted down. — (U. S. Ev., 
 pt. 1, p. 19. Lovejoy's ev'd.) Thinks $2,500 or $3,000 
 would build the buildings. — {ib.) 
 
 Buck. In 1850 buildings could be built for $2,000.— 
 (p. 212.) Buildings washed away in 1801. — {ih.) 
 
 Appcrton. In 1858 buildings not worth over $4,000. — 
 (p. 211>.) Buildings washed away. — (p. 211).) Land at 
 landing not worth over $50 an acre, ami after the iiood 
 not worth over $5 an acre. — ([). 210.) Buildings not 
 worth over $1,500 or $2,000 when washed away. — (p. 
 220.) 
 
 Barlow. In 1846 cost of erecting the buildings would 
 have been from 4 to $5,000. — (p. 223.) Buildings rotted 
 down and washed away. — {ib.) The value of the build- 
 ings in 18»)1, before being washed away, from $1,000 to 
 $1,500.— (p. 224.) 
 
 Kesmith. In 1844 there was a small dwelling house, 
 granary, and small store; cheap rough buildings. 
 Buildings might have been i)ut uj) for $1,000 or $1,500. 
 Land not valuable.— (U. I?. Ev., 2d pt., p. 20.) 
 
 Xesmith. Cliampoeg of no future imi)ortance. — (U. 
 S. Ev., i>t. 2, p. 29.) 
 
 Wilkes. Comi)any had no station in 1841. — (p. 278.) 
 
 Gilpin, in 1844 saw no buildings but sheds. Did 
 not understand the Company liad station there. It was 
 used only as a landing place. — (p. 335.) 
 
 185 
 ran 
 niei 
 vail 
 
 , (p. 
 
 i i)v 
 
 \ 
 
11(1 rotted 
 ,- rights of 
 e. 
 at $5 an 
 
 •chased of 
 , does not 
 
 U. S. Ev., 
 or $3,000 
 
 • $2,000.— 
 
 r $4,000.— 
 
 Land at 
 
 the Hood 
 
 klings not 
 
 away.— (p. 
 
 higs would 
 
 injjs rotted 
 
 the bnild- 
 
 1 $1,000 to 
 
 ling house, 
 buihlings. 
 or $1,500. 
 
 ) 
 
 taiico. — (U. 
 
 -(p. 278.) 
 (heds. Did 
 ire. It WiiH 
 
 45 
 
 Umpqua. 
 
 It appears from the evidence — 
 
 1. That this post was abandoned by Company during 
 Indian war, and never re-occupied. This failure to re- 
 occupy the post shows it must have been of little or no 
 value to the Company. 
 
 2. The barn and otlier buildings were burnt. 
 
 3. A house was built by Chapman at Umpqua, which 
 should not, it is submitted, be taken into consideration 
 in estimating value of the post, as it w^as built since 
 184G. 
 
 AV. W. Chapman. Rented Umpqua post in 1853, at 
 $100 or less.— (U. S. Ev., pt. 1, p. 11.) About 30 or 40 
 acres enclosed at this post. — (p. 12.) Some of the build- 
 ings destroyed by tires which raged in that region. — (p. 
 13.) Values buildings at U. at about $200. — (p. 13.) 
 Thinks land claimed by Company never worth over $10 
 per acre.— (p. 14.) Thinks $10 would have been a high 
 price. — (lb.) In 1861-2 a Hood washed out lower Ump- 
 qua. — (p. 15.) Gov. Gibbs values buildings at $1,500. — 
 (U S. Ev., pt. 1, p. 22.) Values land claim at $5 an 
 acre.— {[().) Gov. Gibbs, in 1851, sold claim of 320 acres, 
 about 80 acre'] of it as good as Umpqua claim, about 1.1 
 miles from Umpqua, for $250. — (p. 24.) 
 
 Tolmie. Umpqua abandoned after Indian war. — (p. 
 100.) And the post was not afterwards occupied because 
 Indians put on it as reservation. — (p. 104.) 
 
 Deady. 040 acres around Umpqua would have sold, 
 from 1853 to 1860, at from $1 to $4 per acre.— (p. 108.) 
 
 Applegate. Surveyed section of land at Umpqua, in 
 1850 or 51, for Company. Cattle not confined in their 
 range to this section. This section, excluding improve- 
 ments, worth now $2 an acre. No improvements of 
 value remain. Barn and other improvements l)unit. — 
 (p. 266.) A house worth $400 or $500 was built diere 
 l>y Chapman, still standing.— (]». 267.) The section of 
 
 It 
 
 I 
 
 I:. 
 
 !■* 
 
 11., 
 
 I 
 
 i 
 
 
 I 
 
■ I "■i'm 
 
 ^T; 
 
 !■•> ■ iwmm^^immmmirmmmt 
 
 •lii 
 
 111* 
 
 r 
 
 4i> 
 
 land at Ump([ua and its inipioveinents might have been 
 sohl ill 1850 at from 3 to $5,000.— (p. 281.) 
 
 Nelson. McLoughlin said post established in 1884. 
 Limited degree of agriculture there for use of post. Some 
 cattle, pigs, and brood mares sent there. — (U. S. Ev., pt. 
 2, p. 100.') 
 
 ITuntington. Umpqua has no connection with Cali- 
 fornia trail. — (p. 146.) Between 100 and 150 acres culti- 
 vated land. — (p. 147.) Thinks buildings cost $1,000. 
 hi 1850 buildings much dila}>idated, worth nothing to 
 any one but Company. — (p. 148.) Buildings did not 
 average more than 8 feet to eaves. — (p. 154.) Good land 
 in Umpcpia valley worth, unimproved, $2 to $4 an acre. — 
 (p. 155.) Farms in valley sold, with dwellings and largo 
 part of land fenced, from $3 to $5 an acre. — (p. 155.) 
 Stock ranged on public land; no one thought of j)aying 
 for grass. — (p. 150.) The cost of Indian labor to Com- 
 pany a mere nothing; they were subsisted on potatoes 
 and salmon, and paid in trinkets and clothing at most 
 enormous prices. — (p. 162.) 
 
 Dr. Thompson. In 1852 buildings dilapidated; some 
 had fallen down. — (p. 218.) One-half land around wa?: 
 good. A mile square around the post worth from $2,000 
 to $2,500. — (?Y>.) Iload to California passed on opposite 
 side of river. — [ih.) Farm is only valued now at $1,500. — 
 (p. 219.) 
 
 Gov. Gilpin. Informed in 1844 that trade diminish- 
 ing.— (p. 336.) 
 
 Dowell. In 1852 buildings not worth over $500. — (p. 
 358.) A mile s((uare, in 1852, would have sold for $1,500 
 or $2,000. Present value not as great. — (p. 359.) 
 
 Destroyed by fire about 1851. — (Gov. Stevens' Rep., 
 Miscellaneous Ev., p. 223.) 
 
 N'ez-Perces or "Walla-Walla. 
 
 It appears from the evidence — 
 
 That the Company sold the old fort in 1860 foi 
 
 $900. 
 
 I 
 
 ;ba 
 ill! 
 J str 
 ': val 
 
 I (p. 
 I stH 
 
 I 
 
 ■il„.;*n| 
 
m 
 
 t have been 
 
 ed ill 1834. 
 post. Some 
 T. S. Ev., pt. 
 
 i 
 
 1 with Ciili- 
 
 acres ciilti- 
 co8t $1,000. 
 
 1 nothing to 
 nirs did not 
 I Good hind 
 $4 an acre. — 
 igi? and hirgo 
 I'e. — (p. I'')'').) 
 ht of payini,^ 
 bor to Coni- 
 [ on potatoes 
 thinir at most 
 
 i dated; some 
 I around was 
 h from $2,000 
 [ on opposite 
 w at $1,500.— 
 
 ide diminish- 
 
 /er $500.— (p. 
 5old for $1,500 
 
 . 359.) 
 Stevens' Rep., 
 
 \. 
 
 irt in 18(30 for 
 
 o 
 
 Tliatin 18G2 tlie bnildini^s were almost entirely de- 
 stroyed. 
 
 8. WaUuhi lias been superseded by Umatilla. 
 
 Aukenv. G40 acres of land there worth not over $1.25 
 per acre. — (U. S. Ev., pt. 1, p. 44.) 
 
 Meek. Soil sand and <rravel, worth nothing for agri- 
 cultural purposes. — (IT. S. Ev., pt. 1, p 08.) 
 
 Tolniie. Abandoned on account of order of Olney, In- 
 dian agent, in 1855-0. Company afterwards made no 
 effort to re-occupy it. — ({). 100.) 
 
 W. H. Gray. Buildings did not cost over $250.00.— 
 (U. S. Ev., pt. 1, p. 101.)" Value of buildings at $1,000. 
 -{lb.) 
 
 Applegate. The old fort sold in 1860 for $900.— (p. 
 274.) Valued what remained of old post at $200. — (p. 
 273.) ;N^o land fit for cultivation. 
 
 Applegate. Town property in Wallula could not be 
 sold for cost of improvements. — (p. 291.) 
 
 Kinearson adopts report made by Applegate, Carson, 
 and witness as to this post. — (p. 317.) 
 
 Carson adopts report made by A[)plegate, Rinearson 
 and witness. — (p. 350.) 
 
 Xesmith. Post in 1843 of adobe, may have cost $2,000 ; 
 saw no enclosed lands near it. Country aronnd sandy 
 <lesurt.— (U. S. Ev., 2d pt., p. 28.) Does not think Wal- 
 lula will ever be important. — (p. 28.) 
 
 Nelson states, or McDongal says, Walla-AValhi mere 
 fort, poor soil, cost a good deal, no farms tbere, small 
 garden, no trade in furs, built to subdue Indians. — (p. 99.) 
 
 ^icFeel3\ In 1853 fort consisted of two or three, pro- 
 bably four, snuill buildings, adobes. The country adjoin- 
 ing was barren and sandy, with the exception of narrow 
 strii)s near the Touchet. Saw no land there under culti- 
 vation ; does not think cost of buildings over $5,000. — 
 (p. 121.) 
 
 Huntington. In 1802 buildings almost entirely de- 
 stroyed. No laud enclosed at post. Company had a farm 
 
BSEE 
 
 9i 
 
 , I- 
 
 i4 
 
 f 
 
 1; 
 
 .'I 
 
 ili 
 
 «' ■■ .;:!'i:: 
 
 ": ili: 
 
 48 
 
 twetity miles back in Walhi-Walhi valley, some 20 or 80 
 acres, excellent land, worth $^ or $10 an acre. No build- 
 ings on farm. — iib.) Umatilla has superseded Wallula. 
 — (p. 150.) l!^ever heard of any enclosure around post. 
 Seen great numbers of Indians pasturing their horses in 
 hills back of fort. Land sandy desert. — (p. 164.) 
 
 Col. Gibson. Nez-Perce was more a halting place for 
 Company's ponies than anything else. Some little trad- 
 ing with Indians with ponies. — (//;.) 
 
 Cain. In 1859 buildings dilapidated ; have been rebuilt 
 by traders, believes at their own expense. — (p. 223.) 
 Buildings vrorth in 1859, betbre being rebuilt, ^2,500 to 
 $3,000. — (p. 224.) No good farming or grazing lands 
 under fourteen miles. — (ib.) In 1859 mile scj^uare of land 
 had no particular value apart from buildings; since then 
 it has become valuable as a landing for the mines, and to 
 a limited extent for country around. — iih.) Tiie part that 
 lias become vahuible is where the buildings are. — (p. 237.) 
 About 80 acres. — [ib.) The rest of the mile-square has 
 only a speculative value. — (p. 238.) 
 
 Shoemaker. In 1862 Van Syckle called landing at old 
 Walla- Walla, Wallula.— (p. 252.) When Van Xvckle 
 went to it there was no apparent occupation by Company. 
 — {ib.) After gold excitement over, Umatilla sprung up, 
 and Wallula declined; the trade was diverted from Wal- 
 lula and Van Syckie became ruined. — (ib.) Wallula went 
 down with Van Syckie; nearly all the buildings ceased to 
 be occupied, and a number of them were torn down. — 
 (p. 253.) The old buildings of the Company, before 1860, 
 were in a dilapidated condition ; worth $500 to $1,000 
 provided any one wanted them. — [ib.) Witness is liousc 
 builder and carpenter. — (lb.) Lewiston above has taken 
 the upper trade from Wullula. — (p. 254.) Land around 
 of no value for several miles, the bottom lands subject to 
 overflow. — {ib.) 
 
 Gov. Gilpin. Country around extremely sandy, of no 
 value for cultivation or pasturage. — (p. 332.) From five 
 
 d(| 
 
 in 
 
 Gl 
 
 iv\ 
 w 
 
 (I 
 t(J 
 
 eil 
 
 )il!1*l| 
 
411 
 
 >(l or 30 
 obuild- 
 Vallula. 
 nd post. 
 
 orses in 
 
 ) 
 
 >lacc for 
 
 ;tlc trad- 
 
 u rebuilt 
 
 p. 223.) 
 ^2,500 to 
 
 ng lands 
 ■e of land 
 ince then 
 es, and to 
 
 part that 
 -(p. 237.) 
 L^uare has 
 
 lina; at old 
 m iSvckle 
 Company, 
 prung up, 
 from Wul- 
 illula went 
 s ceased to 
 n down. — 
 3tbre 18G0, 
 
 to $1,000 
 ss is house 
 
 has taken 
 ,nd around 
 
 subject to 
 
 mdy, of no 
 From live 
 
 to seven acres cultivated land worth §10 to $12, mx ucro. 
 —(p. 338.) 
 
 Dowell. In 1835, post would not liavc sold for over 
 .$2,000. — (p. 3(31.) The agent in charge said the Company 
 left the post from fear of Indians. — (///.) The reason 
 things not moved from post when it was abandoned, was 
 from want of transportation, — (p. 302.) Land around a 
 barren sandy plain. — {ih. ) 
 
 Terry. In IS')! buildings not worth $10; of no value 
 now. — (p. 301.) Original cost of buildings not over 
 §2,500.— (p. 391.) 
 
 Gibbs. In 1853 post utterly valueless, except as a sta- 
 tion where horses kept for the trains. Not trade enough 
 to warrant its maintenance. Fort in very inditferent re- 
 pair. Some eighteen or twenty miles up the Walla- Walla 
 river is a so-called farm on which were two snnill build- 
 ings. Some twenty acres at farm cultivated in different 
 spots. No vegetation on land round fort capable of sus- 
 taining animals. — (p. 403.) 
 
 Nez-Perces post in 1854 almost wliolly valueless, except 
 as a station where horses can be kept for the trains. — 
 (Gov. Stevens' Report, Miscellaneous Ev., p. 221.) Eight- 
 een miles up Walla-AValla river to so-called farm, on 
 which are two small hovels. The dam formerly here for 
 irrigation is broken down. Considers $5,000 a large 
 estimate for post and farm. — (Jb.) 
 
 Fort Boise. 
 
 Fort and buildings being of uni)ur)it brick, are melted 
 down by rains. It' l)uildings there in 1843 existed 
 in 1863, would not have sold for over $1,000. — (Gov. 
 Gibbs, IT. S. Ev., pt. 1, p. 34.) Soil about post, barren 
 and sandy, with no timber except scrubby cottonwood and 
 willow, on the Boise, and very little of the land tillable. — 
 (p. 34.) The best unimproved land at post worth from $3 
 to $5 an acre, and it would be some time before it would he 
 entered at $1.25 an acre. — (p. 34.) Hoofs of buildings 
 
■IV 
 
 no 
 
 i }• 
 
 !.i|fii 
 
 
 
 ,f<j(ji 
 
 .^.j: 
 
 r '['if 
 
 made of sjilit lo,s;a, covered w\{\\ dirt. — (p. 20.) Land 
 roqiiiros irrigation. — (i». 30.) No Indian trade tliere now 
 {186(>) of any valne. — (|). ij\K) McCarver saw post in 
 1843.— (p. 31.I.) 
 
 Aukenj. Saw post in 1850. Buildings a good deal 
 dilapidated. — (p. 42.) Bnildings worth nothing for agri- 
 cultural ]>urposes. — (p. ^'^.) Miglit, as a place of deposit, 
 be worth $2,000. — {ib.) Soil around alkali, brush and sand 
 the most of it. — (p. 42.) Would class it with government 
 land, $1.25 per acre. Some 4 or 5 miles oft", land better. 
 
 The Company's agent told Aukenythe Indians around 
 had got lazy, and he thought the}' would have to aban- 
 don the post.— (U. S. Ev., pt. 1, p. 40.) 
 
 Meek. Says "the soil is very bad about Boise." Sand, 
 sage, and greasewood is about all. — (U. S. Ev., pt. 1, p. 
 (37.) Don't think the land would he worth anything for 
 agricultural purposes. — (p. 67.) Buildings cost about 
 $1,000.— (p. G7.) 
 
 Tolmie. Fort Boise abandoned in 1850, because Snake 
 Indians became hostile. — (U. S. Ev., pt. 1, p. !M».) 
 
 Gray. Buildings cost less than $250.— (U. S. Ev., 
 pt. 1, p. 163.) Lands near not worth over $1.25 an 
 acre. — [ib.) 
 
 Nesmith. Buildings 1843, worth about $1,000. Two 
 or three acres enclosed. — (L'. S. Ev., pt. 2, p. 27.) 
 
 Nelson. Dr. McLoughlin said, no farms at Boise. 
 Post established to keep Indians in order. 
 
 McFeely. In 1854 the fort consisted of one or two 
 adobe buildings, or one building with three or four small 
 apartments, and a small corral. Thinks the cost of buil- 
 dings not over $2,000. — (p. 122.) The land around barren 
 and sandy. — {ib.) Saw no land enclosed or under culti- 
 vation. — (ib.) 
 
 Col. Gibson. Would not have given anything for 
 buildings. 
 
 Col. Keno. In 1859, buildings pretty much in ruins. — 
 (p. 200.) Bnildings were worthless. — ([>. 210.) 
 
 i 
 
 11 
 
 C( 
 HI 
 PJ 
 
 cli 
 
 tif 
 
 a 
 
 11 
 
 ti 
 
 .1 , ;,:H; 
 
51 
 
 Land 
 cro now 
 post in 
 
 »od deal 
 
 for agri- 
 
 dcposlt, 
 and sand 
 
 ernment 
 
 d better. 
 IS around 
 ; to aban- 
 
 " Sand, 
 
 , pt. 1, P- 
 rtbing for 
 
 ost about 
 
 luse Snake 
 
 W.) 
 
 J. S. Ev., 
 
 I- $1.25 an 
 
 ,000. Two 
 
 27.) 
 
 s at Boise. 
 
 one or two 
 ,r four small 
 uost of biiil- 
 •ound barren 
 under culti- 
 
 mytbing 
 
 for i 
 
 ;b in ruins. — 
 
 .0.) 
 
 Colonel Reno saw no cultivated land. — (p. 211.) Soil of 
 alkali nature, sage brush, very inditterent for cultivation. 
 — (p. 211.) As to pasturage, I do not think a herd of a 
 hundred animals could live within range of the post, and 
 be at all serviceable. — {lb.) Found it useless to send ani- 
 mals there for pasturage. — [id.) 
 
 Simpson. In 18r>3 buildings in dilapidated condition ; 
 the land nearly a desert, with excejjtion of little strips 
 alouii' river. Values buildings and land in l><i')d at 
 $0,000. In 1855 very little difference in value ; buildings 
 may have depreciated some. — (p. 202.) 
 
 George Gilpin. Similar to Fort Ilall ; buildings some- 
 what better; of less value as trading post. Chief use, as 
 a place of rest for Conipany's ti'ains. Sa\v' no enclosed 
 land. Should not value buildings and post over $2,500 
 or 83,000. 
 
 Allen. In 1852 the value of buildings so slight it 
 would be ditHcult to estimate it. Saw no trade there. 
 The employee in charge said trade did not pay his com- 
 l)ensation. — (p. 306.) 
 
 Dr. Sucklev. AUowini? for time adobe bricks are dry- 
 ing, the mere labor of building such fort ought to be 
 perioriiied by twenty-five men in five days. — (p. 248.) 
 
 Fort Boise in 1854 merely a stopping place. Estimates 
 Fort Boise and Fort llall at $15,000.— (Gov. Stevens' R., 
 Miscellaneous Ev., p. 223.) 
 
 It is to be noted that Fort Boise was abandoned in 
 185(5 by the Company on account of the Intliaiis be- 
 conung hostile, an<l no effort was made by Company after- 
 wards to re-occupy it. This, it is submitted, shows the 
 post was valueless. 
 
 It is further to be noted that McKinlay, one of the 
 chief factors of the Company, could not define any par- 
 ticular lines of the Company's claim at this post. In the 
 absence of such evidence, it is submitted the Company's 
 limits must be restricted within the narrowest range, as 
 the Company are bound to prove the extent of tlu'ir claim 
 definitely at each post. 
 
 },4 
 
im 
 
 ( .' 
 
 111!'' ;;i; 
 
 ' : '' f. 
 
 
 ■y\ 
 
 jifll 
 
 
 m 
 
 i;'.lt^: 
 
 FouT IIali,. 
 
 1. It is to 1)0 noted tliat no uHort was nmde by Com- 
 pany to re-ocoupy tliis post at'tor its abiindonnient durini,^ 
 tlio Indian war. 
 
 2. That tlici'o was no cultivated land there. 
 
 o. That the buildinn's were washed away by the river. 
 
 Aukenv. Saw Fort IFall in 184!>. Ado])e Buildinii-s. 
 — (U. S. Ev., pt. 1, p. 40.) Land worth government 
 price. — (p. 41.) 
 
 Meek. Thinks buildings at Fort lEaii cost 81,000.— 
 (U. S. I'A'., i>t. 1, p. GO.) Land about Fort Hall worth 
 $1.25 an aere. — \\). 67.) Finployees su[)portod by game 
 killed or bouglit from Indians. Game wys in great abun- 
 dance tiicre. — (p. 70.) Fort Ihdl was put uj) in two 
 months by ten or twelve Kanakas ; not sure whethei'the 
 inside was completed in that time. — (p. SO.) Fort Hall 
 built by men who irot $10 a year. Provisions were cheap 
 then. The Indians friendly. — (p. 82.) IJeaver were 
 scarce. — (p. 80.) Very little lumber about Fort Ifall. — 
 (p. 05.) 
 
 Tolmie. Fort Hall abandoned in 1850.— (p. 00.) The 
 Indian war of 1855 caused its abandonment, as introduc- 
 tion of ammunition forbidden by Governnicnt, I'.nd peo- 
 ple at post subsisted by hunting. — (p. 00.) 
 
 Gray. Buildings cost less than ,^250.- (U. S. Ev., pt. 
 1, It. lOa.) 
 
 C. 0. Hewitt. At Fort Hall in 1852. The officer in 
 charge said it would not pay to keep up the post, and 
 the Company was going to abandon it. — (p. 882.) In 
 1862 found no building of any kind standing, the river 
 had washed away the post. — {ib.) 
 
 11. II. Hewitt. In 18(!2 the bare remnants of an old 
 station. The post bad been washed away. 
 
 Nesmith. In 184o Fort Ilall a rude structure of adobe, 
 the buildings covered with poles and dirt, very cheaply 
 built. Tliinks, at the then juices of labor, Fort Hall 
 could hiivc been built forii^l.OOO. — (p. 27.) Saw no cul- 
 
 4:]J 
 pn 
 art 
 
 vH 
 
 rui 
 
 i.iiiiiyiiM' 
 
"):j 
 
 Com- 
 (luriiig 
 
 nvor. 
 ildiiiii;^. 
 rnmoiit 
 
 [,000.— 
 
 1 worth 
 IV sjrame 
 at ubmi- 
 
 in two 
 'tlicrtlie 
 ort Hall 
 I re cheap 
 er were 
 t IlalL— 
 
 9.) The 
 mtroduc- 
 I'nd pco- 
 
 . Ev., pt. 
 
 ofHoer in 
 post, and 
 88-2.) In 
 the river 
 
 of an okl 
 
 > of adobe, 
 y cheaply 
 Fort Hall 
 w no ciil- 
 
 X 
 
 i 
 
 tivated lands there; the a<jcent in charLfe said tiiey raised 
 nothins:; there. — (//>.) Bnihlings withont tloors. — (p. 40.) 
 
 Nelson. ])r. MeLoiiii'hlin said Fort Hall hnilt hy 
 Wyi'th, an American, m 1834. to snjtply the tra])pers; 
 Tio farms there; 8 or 4 cows sent in 183(i \}y Company t(^ 
 i(ive Indians. Land barren around. — (U. S. Ev., 2d i)t., 
 p. 00.) 
 
 i\(lams. Eort Hall built of a(!iho. Estimates cost of 
 construction at $0,000. — (p. 118.) Saw no enclosed 
 ground for cultivation outside of the fort. — {ib.) 
 
 Sim[)son. Saw no cattle at Fort Hall in 18-5"). Com- 
 l)any had a few liorses tliere. — (j>. 201.) Land and build- 
 ings in 1802 worth about $0,000.— (p. 208.) 
 
 Gov. Gilpin. At Fort Hall in 1844. Post snudi 
 ([Uadrangular post, adobe log cabins; buildings of little 
 value as structures; for mere temporary use. $2,000 
 would be a generous price for all structures at Fort 
 Hall. — (p. 381.) Xo cultivated la. ids; no enclosures but 
 temporar}' corrals with poles. About 300 or 350 head of 
 stock grazing around. The amount of trad" uncertain 
 and transient on account of migratory character of Indi- 
 ans about. — (?'/>.) 
 
 Howell. Country around in 1852 vacant. Immedi- 
 ately round the fort a sandy plain. — (p. 300.) 
 
 Geid. Granirer. In 1840 buildings old and decaved. 
 not worth more than quarter what it was when new. — (p. 
 379.) Land around utterly sterile, with exception of 
 river bottom and small stream called Portneuf. A patch 
 of acre and a half spaded up. Adobes cheaper than 
 wooden buildings. 
 
 Okanagan. 
 
 Auken}'. Was at post in 1859. — (U. S. Ev., pt. 1, p. 
 43.) Buildings going to rack, general waste around the 
 jiremises. — (p. 44.) Buildings worth $500. — [ib.) Land 
 around sandy and poor. — (ib.) Not valuable now as a 
 ]ilace of trade. — (//'.) Buildings pretty much gone to 
 ruins. — (p. 53.) 
 
 ^^:f 
 
p ! iimr' 
 
 54 
 
 1* 
 
 1 ., 
 
 Tolniie. Company lias no white person at Okana^nn. 
 There may he an Indian chief in chariije. — (p. 91).) 
 Okaiia<;'an lost its importance after Cayuso war of 1H47-8. 
 The Comi>any liad to open a new ronte tlirough British 
 Cohinihia to Lower Fraser river, and Okanoijan was su- 
 l)erseded by new post at Simalkameen, situated a few 
 miles north of the line. — (p. 103.) 
 
 Kinearson. Keirards land as not valuable for agricul- 
 tural [)urposes. — ([>. 31G.) 
 
 Xelson. States Dr. McLoughlin as sayinu', Okanogan 
 a small post, receptacle for the boats; soil barren; small 
 garden.— (U. S. Ev., pt. 2d, p. 98.) 
 
 G. C. Gardner. In 1801 buildings in a dilapidated 
 condition. — (p. 195.) liemembers no enclosed land at 
 fort.— (//>.) 
 
 AV^ilkes. Okanagan situated on sandy rock. — (p. 284.) 
 
 AVilkes. Woil too poor for farming. In 1841 Com- 
 pany had some goats there, and thirty-five cattle. — (p. 
 28.5.) 
 
 Mowry. In 1853 buildings had depreciated 75 per 
 cent. Thinks ten men could have built the i)ost in three 
 months. — (p. 385.) 
 
 Gibbs. In 1853 Okanagan consisted of three small 
 houses, enclosed by stockade. No appearance of busi- 
 ness there. It was in state of perfect squalor. Did not 
 pay expenses. — (p. 407.) 
 
 Dr. Suckley. Twenty-five soldiers could build Fort 
 Okanogan in two days. — (p. 242.) 
 
 In 1854 no appearances of trade here. Post does not 
 probably pay expenses. — (Gov. Stevens' R., Miscellaneous 
 Ev., p. 222.) Estimates value of Okanagan, Kootenais, 
 Flatheads, and right of pasturage on Clark's Fork at 
 15,000.— (i6., 223.) 
 
 COLVILE. 
 
 Aukony was at Colvile in 1859-'GU. — (U. S. Ev., pt. 1, 
 p. 43.) Does not thiidc it has any importance as a boat 
 
 J '. 
 
 ^ 
 
 i 
 
 in 
 
 tiel 
 nit 
 
 thii 
 tivf 
 
 Sul 
 pa[ 
 
:>r> 
 
 [p. OU.) 
 f 1H4T-8. 
 
 was su- 
 5(1 a few 
 
 ■ aji;ric 
 
 ul- 
 
 )kauo<?au 
 211 ; small 
 
 ilapulated 
 il land at 
 
 -(p. 284.) 
 1841 Coin- i 
 lattle.— (p. 
 
 ed 75 per 
 ast in throe 
 
 hrec small 
 ce of busi- 
 •. Did not 
 
 build Fort 
 
 )st does not 
 iscellaneous 
 ^ Kootenais, 
 k's Fork at 
 
 S. Ev., pt. 1, 
 ce as a boat 
 
 landin*^, (|>. 41*,) or place of trade. — (//>.) It is an out-of- 
 the-way [dace. — {(/).} »)40 acres laud round Col vile worth 
 ^'2.'>0 to $.') jier acre. — (p. 4-').) 
 
 Ap)>legate values iniprovemouts at ^8,800. — ()». 'JTO.) 
 Values land, exclusive of irnproveuients, at Si*,'>00. — (p. 
 277.) Attaches no value to it as a town site. — (p. 278.) 
 Values mill at $r)00.— (//>.) Values White Mud farm, 
 30 acres, at ^1.25 an acre. — (ih.) Would not sell the 
 water-power at mill for less than $r),()()0. — (p. 21»8.) Does 
 not consider Kettle Falls valuable as a water-jtower. — (p. 
 802.) 
 
 Rinearson adopts the re[>ort made by Api)Ieii:ate, Car- 
 son, and himself. — (p. 317.) 
 
 Carson adopts the reports of Api)legate, Kinearson, and 
 himself. — (p. 35G.) 
 
 G. C. Gardner identities photou'raph of Fort Colvile. — 
 (p. 195.) 
 
 Cain. Buildings in 1850 worth from 5 to $7,000 to 
 any one needing them at that point. — (p. 224.) Identi- 
 ties photograph of. — (p. 225.) 
 
 Mowry. Saw post in 1853. Buildings had depreciattid 
 in value 40 per cent. — (p. 384.) 
 
 Gibbs. Before 1853 goods were sent througli this post 
 to those north of the line, but that route was abandoned. 
 Behind the fort, and elevated above it about a hundred 
 feet, is a narrow valley, through which runs Mill or AVhite 
 Mud creek. 
 
 In this valley the discharged servants of Company set- 
 tled to the number of 15. In this valley is a cattle post 
 nine miles from fort, and a grist-mill of one pair of stones 
 three miles from fort. Oidy small portion of farm cul- 
 tivated in 1853.— (p. 405.) 
 
 The buildings occu[)ied by North Western Boundary 
 Survey at Fort Colvile were greatly superior to Com- 
 pany's buildings at Colvile. — (p. 400.) 
 
 Kettle Falls not valuable for manufacturing purposes. 
 -(p. 417.) 
 
^It--I 
 
 Suc.'kle\'. Twonty-fivc soldiers couid build Fort Col- 
 onic [.. thirty <ltiys, or less. — (p. 541,) 
 
 Gov. StevenSj in 1854, estimates post and mill at 
 S25,00( , —(Gov. Stevens' K., Aliscellaneons Ev., p. 222.) 
 
 ■■'m 
 
 KoOTENAIS. 
 
 Tolmie. Kootenais not now occupied, the Company 
 have a post north of the line in Kootenay. — (U. S. Ev., 
 pt. 1, p. 08.) New post at Kootenais est.ablished because 
 a trail opened through British territory. — (p. 105.) 
 
 Nelson. Slates thatDr, McLoughlin said Kootenais a 
 mere winter trading post, no tarms, no cattle. — (U. S. 
 Ev., pt. 2, p. 98.) 
 
 G. C. Gardner. In 1860, ])assed some log houses, 
 which the Indians said was old Kootenais post. — (p. 102.) 
 Buildings dilapidated. — (p. 103.) 
 
 A. Gardner. Identifies photograph ot mission. — (p. 
 320.) 
 
 C. T. Gardner. In 1800, there was a log house and 
 shed in dila[>idated condition. — (p. 322.) About 40 acres 
 seemed to have been in cultivation. — (p. 323.) 
 
 Hudson. Kootenais consisted, in 1850, of a church, a 
 usvelling for man in charge, and three or lour smaller 
 buildings. — (p. 340.) liecognizes pliotograi)h of churcli, 
 the dwelling was similarly built, but much smaller. The 
 other buildings were inferior, and quite small. — (ih.) Saw 
 no one in charge. Saw no signs of cultivated land, or 
 stock.— (p. 340.) 
 
 Gibbs. In 18()0, there were only two small worthless 
 log cabins. Recognizes photograph of Catholic Mis- 
 sion. — (p. 407.) 
 
 Alden. Land around generally of a miserable ((UJiiity. 
 Four or five log huts. Tiie largest one a church. It was 
 e'upty, except some religious engravings, — (p. 552.) lie- 
 cognizes photograph of Catholic Mission, in evidence, 
 
 ). 558.) Jiuildings looked very much dilapidated. — (p. 
 
 (1 
 
 I 
 
 li. 
 t( 
 
 P' 
 
 554.) Three axe-men could erect such a house as Lenk 
 
57 
 
 )r 
 
 t Col- 
 
 mill at 
 p. 222.) 
 
 lompany 
 
 . S. Kv., 
 
 because 
 
 5.) 
 otenais a 
 
 ,— (IT. S. 
 
 • houses, 
 l(p. 192.) 
 
 sion. — (p. 
 
 lOUsc and 
 it 40 acres 
 
 cliurcli, a 
 ur smaller 
 [)f cliurcli, 
 Her. The 
 .[ib.) Saw 
 ad laud, or 
 
 I worthless 
 holi( Mis- 
 
 ble quality. 
 
 eh. It was 
 
 562.) Ke- 
 
 II evidence, 
 idated.— (p. 
 ise as Lenk- 
 
 later's in three days. — ([>. 554.) Saw no i>-(wd land on 
 tobacco plains, near Kootenais. — (p. 550.) Wlioie coun- 
 try graveled terrace. — (p. 560.) Jjenklatei''s house wiis 
 half the size of the church. — (p. 501.) 
 
 Flathhad. 
 
 Nelson. States Dr. McLoughlin said Flatheads used 
 only in winter to trade with Indians. — (U. S. Ev., 2d pt., 
 p. 08.) 
 
 Adams. In 1851, buildings barely habitable. It 
 would have cost ^1,20U to rebuild them. — (j). 114.) 
 
 GONCLUSI-ON AS TO THE ToSTS. 
 
 We are now able, in contirmation of the views pre- 
 viously presented of the nature of the rights of the Hud- 
 son's Bay Company, of their value, and of the true mea- 
 sure of compensation, to refer intelligently, and with 
 appreciation of tacts, to further illustration of the true 
 nature of the claim of the Company to compensation. 
 
 1. The value of the possessory rights of the Company 
 is illustrated by the case of the Indians of Xorth America. 
 
 Chancellor Kent, with his accustomed clearness, thus 
 states the nature of their interest in the territory held by 
 Eu"opeans, and their descendants in America: 
 
 " The European nations which respectively estab- 
 lished colonies in America, assumed the ultimate dominion 
 t( be in themselves, and claimed the exclusive right to 
 grant a title to the soil, ,^uhied onh/ to the Indian riijld of 
 (H-cupanrij. The natives were admitted to be the rightful 
 occupants of the soil, with a legal as well as just claim 
 to retain possession of it, and to use it according to their 
 own discretion, though not to dispose of the soil at their 
 own will, except to the government claiming the right of 
 pre-emption. 
 
 Kent's Comm., vol. 8, ]). 461, sec. oTO. 
 Sec also Opinions of Attorneys (xeneral, vol. 8, p. 
 255, 338. 
 
Hi 
 
 Tj.s 
 
 The Government possesses tlieexclnsive power ot'grant- 
 \u'j; the soil to individuals, subject only to tlie Indian 
 right of oceupancv. 
 
 Johnson v. Mcintosh, 8 Wheat., 548. 
 
 Mitchell V. Tlie United States, U J*et., 712. 
 
 United States v. Fernandez, 10 Pet., 303. 
 
 United States v. Kellienx' Heirs, 14 11, , 180. 
 
 Sparknian v. Porter, 1 Pa., 457. 
 
 The Indians liave onlv a riii'ht of use, wliich, however, 
 is divested by purchase or conquest. 
 
 Godfrey v. Beardsley, 2 McLean, 412. 
 
 From these authorities it appears that the Indians have 
 only a right of occupancy in lands, the fee being in the 
 Government. 
 
 The Indians have possessory rights of the iaigest pos- 
 sible extent, for their continuance is during tlie existence 
 of the tribal organization, unless sooner terminated by 
 treaty. 
 
 The right of occupancy may continue, therefore, during 
 the existence of the tribe. Hence, the Indians hold pos- 
 sessory rights in land of extensive duration. T>ut, though 
 their ]»ossessory rio-Jits mavthus continue so long in point 
 of time, there is no pretence that they are owners of the 
 fee. 
 
 The rights of the v. .apanyto land, in this case, are of 
 the same leyal character as those of the Indians. The Com- 
 pany were in permitted occujiancy, and were entitled to 
 the i-osscssory rights arising therefrom ; they had no claim 
 ot title to the fee of the land. They were, therefore, in the 
 legal predicament of the Indians in regard to tlieir lands. 
 Both the Company and the Indians were in the mere 
 occupation of land, the fee of tlie same being in the Gov- 
 ernment of the United States, the Coni[)any, just as the 
 Indians, })ossessing only the possessory riglits, at most, 
 which arise from lawful occupancy. 
 
 The material diiference between the legal status of the 
 Company and the Indians was in the duration of the 
 
 as 
 
 th( 
 
 tiej 
 
 unt 
 
 latl 
 
 ill 
 
 j-ig 
 th.f 
 
 
■)0 
 
 grant- 
 Lndian 
 
 )WCVor, 
 
 ns hnvo 
 in the 
 
 ost pos- 
 )vistoncc 
 ated by 
 
 ', (luring 
 lold pos- 
 , though 
 ;in point 
 IS of the 
 
 iG, are of 
 Mie Coni- 
 itltled to 
 no eUiin\ 
 .re, in the 
 eir lands, 
 the mere 
 
 thcGov- 
 st as the 
 
 at most, 
 
 tus of the 
 :)n of the 
 
 ocfupancv. And in tliis reu'urd the Indians have deci- 
 dedly the advantage, inasniucli as their riglit of occu- 
 pancy is of longer duration : it is during tlieir national 
 existence, uidess voluntarily relinquished by them to the 
 Government. 
 
 The duration of the Company's occupancy was limited 
 to the lawful continuance of their license of trade. When 
 that license terminated their right of occupancy ceased. 
 
 If etlbrt be made to claim for the Com])anv anv other 
 estate in land than the one we have assigned to it as an- 
 alogous with the Imlian title, then we sul»mit this pro[>o- 
 sition : the Company must either have such right of occu- 
 pancy limited, as we have stated it to be, or they possess 
 the whole estate in fee sim[»le. 
 
 That they have not the entire fee simple estate is too 
 clear for argument. Assuming, as a question conceded 
 in the case, that the Company ha\ e not a fee simple 
 estate, then they can have only such interest, that of the 
 right of occupancy, as we have assigned. 
 
 That this right of occupancy must be limited in point 
 of duration, bv the lei^al continuance of the license ot 
 trade, is clear, because unless so limited there is no limi- 
 tation to it, and it would be perpetual. 
 
 Hence, we think, the Indian title to land is instructive 
 as illustrating that occupancy of public land for the 
 longest period consistent with the idea of the fee re- 
 maining in the state. 
 
 And we fui'ther perceive that the Company is not in 
 as good a legal condition by virtue of their occupancy as 
 the Indians are, as the occu[tancy of each of these par- 
 ties confers during the occupancy similar possessory rights, 
 and by consequence f*imilar legal remedies for their vio- 
 lation, but the occupancy of the Indians may be lojiger 
 in point of duration, for the reasons we have already 
 given. 
 
 '2. We present another pertinent exain})Ie of })ossessorv 
 rights in the case of [»re-emi)tor, under the land law of 
 the I'liited State.-. 
 
 X 
 

 (iO 
 
 By the pro-cmption law of tlio United States any per- 
 son, beino; a citizen of the United States, or liaving given 
 notice of intention to become such, being an inhabitant 
 upon the public land, and having made a settlement and 
 erected a dwelling-house thereon, is entitled, upon giving 
 notice within a certain time, and paying the government 
 price, to receive a patent for 160 acres of land and thus 
 become the owner in fee simple. 
 
 From the time of settlement on the land to the end of 
 the twelve months, at which time the price of the land 
 must be paid, the settler, called the pre-eniptor, has all 
 the possessory rights and remedies which arise from the 
 lawful occupation of land, with the supperadded privi- 
 lege of purchasing the land in preference to all otlier 
 persons. — (See Lester's Land Laws, p. 855.) 
 
 Such is the legal status of a pre-em'piioner in general 
 under our law. Such is the manner in which the posses- 
 sory rights of a citizen of the United States in the public 
 land are respected, where he occupies such land without 
 })revious purchase. 
 
 In the State of Oregon and Torritorv of "Washington, 
 that is in the original Territory of Oregon, there was 
 special legislation. 
 
 Congress, on establishing the territorial government 
 of Oregon, passed an act which, ii. effect, gave legality 
 to certain inchoate titles acquired by settlers under the 
 previous provisional government of this Territory. It is 
 the donation act, so called, of September 27th, 1850. — 
 {V. S. Laws, vol. 0, p. 496.) 
 
 In virtue of this act a settle)-, subject to certain vow- 
 ditions of citizenship, was entitled to six hundred and 
 forvv-six acres of land if married, or three hundred ai>d 
 twenty if unmarried, on proof oi' four consecutive yeai's 
 <»f continued resideiice and occupation. — (See Stark v. 
 Starrs, 6 Wallace, 40:;{.) 
 
 This law does not either in terms or s])irit apply to the 
 Jiudsons Bay C''onii)any. 
 
 cei 
 
 8h[ 
 
 of 
 
 pa^ 
 
 SU( 
 
 O! 
 
 OI 
 
 no 
 
 toil 
 
 lis 
 
61 
 
 Y pcr- 
 
 a:ivcn 
 
 bitant 
 
 it and 
 
 riving 
 
 iimeut 
 
 I thus 
 
 end of 
 e land 
 
 luis all 
 
 )m the 
 
 privi- 
 
 [ other 
 
 a^eneral 
 posses- 
 ) public 
 A'ithout 
 
 lington, 
 ere was 
 
 Brnment 
 
 lesalitv 
 
 ider the 
 
 y. It is 
 
 'l850.-- 
 
 ain y.-o\\- 
 Ired and 
 Irod ai\d 
 ivo years 
 Htark v. 
 
 ply to the 
 
 If elaiuiing any rights under it, the Company must of 
 course bo coniined to tlie limits of the statute as respects 
 the quantity of land. It could make no title under it 
 directly, [and if pretending to any, that could be reached 
 only by perjury and fraud, as the pretended title of the 
 Puget's Sound Agricultural Company, that is, by induc- 
 ing individuals to enter donation claims in tlieir own 
 names, but with secret engagement for the benefit of the 
 Company. 
 
 But this law, and the general law, are pertinent to show 
 what is meant by occupation, as the source of "posses- 
 sory rights." 
 
 Never, until in this case, was it pretended that cutting 
 timber on the public domain for sale, (that is, stealing it,) 
 or sutfering cattle to roam over thousands of acres of 
 unsettled public lands, (that is, wholesale trespass,) gave 
 the party title to such land. 
 
 Xor was it ever pretended, before now, that the occu- 
 pant possesses a fee simple. 
 
 The nature of his possessory rights is unmistakable. 
 He occupies, with right of purchase, on compliance with 
 certain conditions. If his inchoate right, as pre-emptor, 
 shall thus ripen into an absolute right, then he purchases 
 of the Government, at the statute price of the public 
 lands. If his inchoate right shall not so ripen, then, and 
 he abandon the land, all his rights, as against the United 
 JStates, are at an end. lie niay, indeed, sell his improve- 
 ments to a succeedinif settler, fallowinij!: him in the occu- 
 pation, but he can claim nothing ot" the Government for 
 such improvements. 
 
 Wiiat, then, is the value oi' the pre-emptor's interest':' 
 Obviously, only the worth of the improvements, in excess 
 of the statute price of th* land. I'he settler can pass 
 nothing else; he has nothing else to sell. 
 
 Suppose, now, that the (iovernment needs the land 
 ll)r public use. Is the Government to pay the sottler/or 
 ((s own land:' Of course not. The Government will pay 
 
62 
 
 .it. 
 
 for the improvements only, not for the fee. The occu- 
 pant has no fee. Tlie fee is still in the Government. 
 
 Let us apply these views to the claim of the Hudson's 
 13ay Company. 
 
 First, it is to bo noted that the treaty, in precisely the 
 same language, guarantees the i)osses8ory rights of "Brit- 
 ish subjects" to land in the territory, as it guarantees those 
 of the Hudson's Bay Company. Any individual being a 
 British subject, and in the lawful occupanc}' of land in 
 the territory, is entitled, l)y tlie treaty, to have his pos- 
 ses^sory rights in such land resj>ectc<l {»rccisely to the same 
 extent as those of the Hudsc^n's Bay Com[»any. 
 
 tSucli being the case, suppose an individual British 
 subject shoukl claim the benefit of the guarantee, to 
 wliat wouhl he be entitled? 
 
 Would he be entitled to anything uiore than to be put 
 on an e([ual footing with American citizens in the con- 
 temporaneous occupancy of land in the territory? 
 
 The American citizen, if in the occupauc}' of land in 
 the territory-, under the special pre-emption laws would 
 luive a lu'e-emptiou right to three hundred and twenty 
 acres, with the accompanying possessory riglits until the 
 patent issued, and this although he nuiy have been in the 
 occu{>«ncy of much more than three hundred and twenty 
 acres of land. 
 
 Woiuld the British subject in the same category be en- 
 titled, by virtue of the treaty, to have his possessory 
 righits respected to a larger extent than the American ? 
 Certainly not beyond the extent of the «|M»tation act. 
 
 The ti"taty provnles that his possessory lights shall be 
 respected, but it does not say in what manner or to what 
 extent tijey shall be respected. It in iiiccessary to con- 
 clude that the manner in whi'h titei*e rights are to be re- 
 spected is to be M\ to the discretion of the United Htates. 
 And it is sutHcient for the United Htittes to respect them 
 in the sMiiue manner it respects the possessory rights of 
 its own ctiizens under the csime cinumstances. 
 
08 
 
 occu- 
 lt, 
 dsou's 
 
 3ly the 
 "Brit- 
 
 iS those 
 Dcing a 
 laud in 
 lis pos- 
 le same 
 
 British 
 itee, to 
 
 ) be put 
 he con- 
 
 V 
 
 kind ill 
 5 would 
 
 I twenty 
 Autil the 
 ni in the 
 
 II twenty 
 
 i<y be eu- 
 .)ssessovy 
 iiierican 'i 
 \ uct, 
 
 Av,\\\ be 
 ]• t>> what 
 y' to eon- 
 ! to he re- 
 ed States, 
 lect them 
 
 rights of 
 
 The treaty would relieve the British subject from tlic 
 necessity of declaring his intention to become an Amer- 
 ican citizen in order to get the benefit of the pre-emption 
 laws, and there would bo no obstacle to his acquiring 
 title to the land occui)ied by liim to the extent of tliree 
 hundred and twenty acres. But he must i)ay for the land 
 if he seeks to acquire title from an occupation as pre- 
 emptor. 
 
 In reference to the })osscssory rights of the Company, 
 they would be as })Ossessory rights of precisely the same 
 character as those of the individual ])re-einptor by the 
 general law. But the Company would have no privilege 
 of pre-empting the land ; and in this respect there would 
 be a marked difference between the legal status of the 
 C'Ompany and the pre-emptiotier. 
 
 The possessory rights proper of the Company, the only 
 rights in reference to land the Comjtany ]»ossessed, would 
 be in (quality identical with those of the pre-emptor. 
 The difference would be in the duration of those rights. 
 
 In the case of the ordinary pre-emptor they continue 
 twelve months. The only question is, how long they 
 continue in the Company? 
 
 It is plain that they could continue in the Company 
 only so long as the Company should be in the lawful and 
 actual occupancy of the land claimed. And they are in 
 the lawful occupancy so long as the license of the Indian 
 trade continues, and the occupancy of the land is neces- 
 sary to their carrying on that trade, and no longer, as we 
 have already demonstrated. 
 
 Their possessory rights cease with their actual occu- 
 pancy. This is the settled rule of law in the case of pre- 
 emptions. 
 
 United States v. Stanley, McLean, V. S. C. R , 
 400. 
 
 This is manifest, because the Company's possessory 
 rights arise from occupancy. They spring from occu- 
 pancy, they perish with occupancy. Where, therefore. 
 
■■ K,:f'.' 
 
 |ii:<i •'{> 
 
 ,ti; 
 
 '.>'■'■- 
 
 <;4 
 
 the Company voluntarily abandon tlio occupancy of land, 
 their possessory rights in such abandoned land are at an 
 end. 
 
 In view of all vvliich, it is manifest that, as against tlic 
 United States, tlie Company has claim to compensation 
 only for the value of improvements. It can have no 
 sliadow (U* pretence of right to tlie laud as land until it 
 shall have paid the statute price thereof to the Govern- 
 ment. 
 
 And, if the Government is to take the improvements 
 oft its hands, and still retain the fee according to the 
 stipulations of treaty, liow preposterors it is for the Com- 
 pany to pretend that the Government, which has never 
 parted with the fee, shall itself pay to the Company the 
 value of its own public land. 
 
 In truth, this pretension of the Company, that com- 
 pensation to them for their "possessory rights " in the 
 land of the United States shall include the value of the land 
 as well as the improvements, exhibits a sublimity of impu- 
 dence, without parallel in tlie history of all the many ef- 
 forts of private claimants to impose upon and defraud the 
 Goverimient. 
 
 Ici 
 
 (C.) — Eight ov Tjiade. 
 
 I. The Company claim that their rights of trade have 
 been infringed. They construe their rights of trade to 
 include three items : 
 
 1. Indian trade. 
 
 2. General trade, other than with the Indians. 
 
 3. Right of cutting and exporting timber. 
 
 IE. It becomes important to ascertain what rights of 
 trade the Company had in this territory. 
 
 We insist that tie Company had no right to function 
 in this territory, except by virtue of the license of trade 
 granted to it in 1838. The original charter of the Con)- 
 pany limited its operations to the country around Baffin's 
 
 A 
 
 on 
 can 
 
 Ik 
 
 is ij 
 it t 
 An 
 
Gr, 
 
 ■ hind, 
 at an 
 
 ist the 
 isatiou 
 IV e no 
 mtil it 
 overn- 
 
 ements 
 to the 
 e Com- 
 s never 
 my the 
 
 it com- 
 ' in the 
 the land 
 >f impu- 
 nany ef- 
 aud the 
 
 ade liave 
 trade to 
 
 rights of 
 
 function 
 
 of trade 
 
 the Com- 
 
 d Baffin's 
 
 Bay. In 1<S8(S tliu 0(>ni[>uiiy olitaint-d a spi-ciiil license 
 for exclusive trade witli llic Indians in tliis and otlior 
 territory on the Pacific, not enihraced in its original 
 charter. 
 
 We ask i-eference in this connection to the original 
 charter of the Coni[»any, and to the license to trade 
 granted to it in 1888. 
 
 From this original charter and this license to trade we 
 claim that, under the original charter, the Company was 
 confined in its o[)erations to the country aroun<l l>affin"s 
 Bay, and that its right to operate in this territory is de- 
 rived entirely and exclusivelv from its license of trade in 
 1888. 
 
 The acceptance of this license of trade is, we insist, a 
 conclusivt! estoi>[)el on the Company to pre\ent tham from 
 claiming a right to trade in this tei-ritorv hy virtue of 
 their original cliarter, independent of their license of 
 trade. 
 
 The husiness powers or functions of the Company in 
 this territory must, thereiore,he determined hy the privi- 
 leges conferred in the license of trade. 
 
 On reference to the license of trade it is found to con- 
 fer upon the Com[)any '^ the exclusive ])rivilege of trading 
 with the Indians." The license of trade has this extent, 
 no more. 
 
 The Conipau}' have no other power of trade than 
 their license of trade gives them. A corporation is 
 limited hy its charter, or grant, and cannot go heyond. 
 A corporation for the husiness of insurance cannot carry 
 on tlie husiness of hanking. A corporation for haidiing 
 cannot eno:ai2:e in manufacturinu*. 
 
 The general doctrine upon this point is stated in iVngell 
 lie Ames on Corporations, p. 238, as follows : 
 
 " A corporation in general can nudce no contract whicli 
 is not necessarv, either directlv or incidentallv, to enahle 
 it to answer that purpose," (the })urpose of its charter.) 
 And further, "a corporation can make no contract for- 
 
 ')'';- 
 
 J: 
 
 
 1'^ 
 
 ri'. 
 

 '< '■[' ■ 
 
 :% 
 
 ■ '■ "•'.I' 
 
 • i. ■'•;.■' 
 
 i' ''11 
 
 ■ •uv 
 
 1 r4?' 
 
 bidden by its cbartcr." — [Ih.) A^j^'mw. In detcniiining 
 wbetlior a c*or[iorati(»ii can make a particular coutnict, 
 * * "wo arc to consider wbctlicr tlio contract is en- 
 tirely foreii^n to tliat jiurpose," (the purpose I'orwliich it 
 is cliartered.) 
 
 Reference is furtlier had to the lollowinii; adiudica- 
 tions : 
 
 A ujrant to a life insuran(;e and trust conipany "of a 
 power to buy and sell drafts and bills of exchange " does 
 not confer the power to issue paper desii^ned to circulate 
 as money. 
 
 In tJie matter of the Ohio Life Insurance Company, 
 
 9 Ohio II., 291. 
 Ducan v. Maryland Savings Institution 10 Gill k 
 
 Johns., (Md.) R., 2!»l». 
 New York Firemen's Insurance Co. v. Ely, 2 Cowen, 
 
 (N. Y.) R., 0(14. 
 Lane v. Bennett, 5 Conn. R., 574. 
 riiiladelphia Loan Conipany v. Towner et al., 13 
 Conn. R., 249. 
 So a corporation authorized for " the exclusive privi- 
 lege of trading with the Indians" cannot engage in 
 general trade. 
 
 Nor can they engage in the business of cutting and 
 exporting timber. 
 
 The only business the Hudson's Bay (.ompany could 
 lawfully conduct in this territory was the Indian trade, 
 and as a means necessary and proper to carry this on, 
 they could cultivate land and pasture it, and cut wood 
 for the purpose of keeping up their posts and employees 
 in the territory. Beyond this any general trading or 
 cutting and exporting of timber was nltra vires. 
 
 It is submitted, then, that the only business the Com- 
 pany could lawfully engage in in the territory was trading 
 with the Indians. Engaging in general trade, cutting 
 and exporting timber, were outside of their license of 
 trade, which was, in effect, the charter under which they 
 were actini>: in the territorv. 
 
 Iti 
 
 11 
 
♦ iT 
 
 BetwoLMi u inoiv Indiiin trade, and llit' i^ciicral trade 
 "wliicli the Company asi»ired to with California, the yand- 
 wieli Island.s, and the Ilussian possessions in Anierieii 
 and tlie loeal vVnieriean trade, there is immense ditl'erenee. 
 Tiie Britisli (lovernment niiglit have l)een willinn' to 
 permit tiie mere Indian trade, and yet well hesitate hefore 
 estabiishini:; a new East India tradinij; company on the 
 shores of the Pacific. 
 
 Assnmino-, tlien, that the Company, so far as its <)jene- 
 ral business transactions are concerned in this territory, 
 must be confined to the specific privilege <i,Tanted in 
 its license of trade, tradin*:: with the Indians, then tlio 
 question arises whether the Company are i)rotected in this 
 riii-ht by the treaty of 1S4G, and if so, whether the United 
 States have done their duty in the premises? 
 
 It is sul)mitted, tliat the treaty i)rovidinjj!: tliat "tlio 
 possessory rights of the Company, * * in land or 
 otiier pi'operty," does not embrace the Company's right 
 of trade with the Indians. 
 
 " Possessory rights " arc rights growing out of the pos- 
 session of tangible property, real or personal. Before 
 •' possessor}' rights " can exist there must be possession 
 of proj)ert3-. There can be no possession except of that 
 which has physical existence. There can be no "posses- 
 sory rights " except of property which has physical ex- 
 istence, as hind, or a house, or a table, or something 
 wliicli has material substance. Trade is not a thing of 
 ])hysical existence. It is impalpable, immaterial, ideal. 
 It is, therefore, not capable of actual possession in the 
 sense which gives rise to " possessor}- rights." One may 
 have possession of the house in which trade is carried on, 
 and possessory rights will arise as to the house, from such 
 possession, but one cannot have possession of the trade 
 carried on in the house, and " possessory rights " cannot 
 arise as to sucli trade. We insist, then, that the guaranty 
 of the treaty in regard to "possessory rights" does not 
 apply to the trade of the Company. This guaranty ap- 
 
 '1 
 
 >i- ■ 
 
 
^_ 
 
 -r^:z 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 
 1.0 If 1^ ^ 
 
 1.1 1."^!^ 
 
 
 L25 ||||.4 1.6 
 
 
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 ► 
 
 Photograph 
 Science£> 
 Corporation 
 
 33 WIST MAIN STRUT 
 
 WnSTM.N.Y. MSSO 
 
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I J ■ ' .■ M 
 
 1 t 
 
 68 
 
 plies only to the visible property in the occupancy of tlie 
 Company. So far as their trade was concerned, it was 
 left to the general protection of the Constitution and laws 
 of the United States. 
 
 But whether we are right or wrong in our opinion that 
 the guaranty of the treaty in reference to the "possessory 
 rights of the Company" does not embrace their business 
 of trading with the Indians, yet we insist that the United 
 States have respected whatever right of trade the Com- 
 pany had with the Indians in as large a measure as was 
 obligatory on the United States. 
 
 We insist that after the treaty of 1846 the Company's 
 right to trade with the Indians was not to be ex r:"sed 
 as an exclusive trade with the Indians, as provided in 
 \, I their license of trade from the British Crown, but w'as 
 I to be exercised subject to the laws of the United States. 
 .' The Company, at the outside, could only claim to carry 
 on this trade on an equal footing with citizens of the 
 United States. The United States had a system of laws 
 in operation, in 1840, regulating intercourse with the 
 Indians. The Company's right to trade with the Indians 
 was to be exercised subject to these general laws, and 
 such other general laws as should be made by the United 
 States, not unjustly discriminating against the Company. 
 Tested by these principles, we submit that the right of 
 the Company to trade with the Indians was fully re- 
 spected by the United States. 
 
 The Company inake vague comi»laints on this subject. 
 
 1. They say Gov. Stevens, and Dart, the Sujterinten- 
 dcnt of Indian Afiairs, forbade the Compau}- to trade 
 with the Indians. But chief trader, McTavish, admits 
 the Company paid no attention to these orders. 
 
 So, therefore, the attempted prohibition amounted to 
 nothing. 
 
 But we submit these orders prohibiting Indian trade, 
 attributed to Gov. Stevens, were either lawful orders, 
 which it was c;tim[H'(c'nl to him to issue, as being in 
 
 ( 
 
69 
 
 Hibjoct. 
 riiiton- 
 I trade 
 admits 
 
 consonance with the general laws of the United States 
 in regulating the Indian trade, or they were unlawful 
 orders, and therefore of no legal effect, and the United 
 States are not responsible for them. ^ 
 
 2. They complain of their trade with the Indians being 
 injured by the settlement of the country, and the cus- 
 tomary Indian wars. But in both these instances, we 
 submit, the legal maxim of damnum absque ivjuria will 
 apply. 
 
 The United States are not in any way responsible 
 for the diminution of the trade with the Indians from 
 these causes. The settlement of the country' was a nat- 
 ural and desirable result in the interests of civilization. 
 And it wouhl be more than the Company had right to 
 expect that this territory should continue indefinitely the 
 hunting ground of the Indians, when it was needed for 
 the use of civilized man. 
 
 As regards the Indian wars, they were unavoidable; 
 they were brought about without any default on the part 
 of the United States. Those wars caused a very large 
 expenditure of money to the United States, and but for 
 the execution of the power of the United States the "pos- 
 sessory rights" of the Companj' would have been of 
 scarcely appreciable value, and their buildings at Van- 
 couver and other points, upon which they place such 
 exhorbitant value, would have been consumed by the 
 Indians. 
 
 8. They complain of the Indians in certain localities 
 being placed upon reservations, whereby their trade in 
 furs was diminished. But this measure of policy, it is 
 submitted, was one entirel}' within the competency of 
 the United States as sovereign in the territory, and Justi- 
 fiable as a proper exercise of governmental discretion. 
 
 It can scarcely be maintained that the United States, 
 by agreeing to respect the "possessory rights" of the 
 Company, intended to abdicate the exercise of any of 
 their sovereign rights in relation to the Indian tribes 
 within their Juric^dietioii. 
 
 'M 
 
^OBBHMHtll 
 
 m 
 
 i''j«.i " 
 
 ■M^- 
 
 In every aspect, theu, in which the subject can be con- 
 sidered, it is submitted, that the Company have no 
 ground of complaint against the United States growing 
 out of the subject of the trade with the Indians. 
 
 On the subject of the general trade of thf Company 
 other than the Indian trade, it may not be inappropriate 
 to remark that there can be no pretence that the United 
 States, in any degree whatever, interfered with or placed 
 impediments in the way of such general trade. 
 
 On the contrary, the Company were left the largest 
 liberty in th's respect, and were free to exercise every 
 function of trade as untrammeled as any American cit- 
 izen or Araeri(!an corporation in the territory. On this 
 point there can be no just complaint against the United 
 States. 
 
 Indeed, it may more properly be said that the United 
 States, in permitting the Company to transform them- 
 selves from an association of fur traders to a vast mer- 
 cantile association, carried their forbearance to an im- 
 proper limit, as necessarily working injustice to their 
 own merchants. 
 
 i'.=; 
 
 L-rii' 
 
 (D.) — Navigation or the Columbia. 
 
 As regards the navigation of the river Columbia, and 
 any claim the Company may have thereto, it is submit- 
 ted— 
 
 1. That this matter is not within the jurisdiction of the 
 Honorable Commissioners in this case. 
 
 The treaty of Jul}^ 1st, 1863, authorizing the Honora- 
 ble Commission in this case, defines explicitly the juris- 
 diction of the Commission in the following terms : 
 
 " It is hereby agreed that the United States of America 
 audherBritannic Majesty shall * * * appoint each a 
 commissioner for the purpose of examining and deciding 
 upon all claims arising out of the provisions of the above 
 quoted (the 3d and 4th) articles of the treaty of June 
 lOth, 1846." 
 
 ot 
 
 it. 
 
 ot 
 qi 
 T 
 
be con- 
 lave no 
 rrowiiig 
 
 ompauy 
 
 ropritite 
 
 Uiiitcd 
 
 r placed 
 
 3 largest 
 5e every 
 lean cit- 
 On this 
 3 United 
 
 ) United 
 m tliem- 
 ast mer- 
 ) an im- 
 to their 
 
 Libia, and 
 9 submit- 
 
 lon of the 
 
 ) Houora- 
 the juris- 
 ms : 
 
 [ America 
 lint each a 
 1 deciding 
 the above 
 y of June 
 
 71 
 
 Tlie said 3d and 4th articles of the treaty of June 15tli, 
 184G, have no reference to tlie navigation of the river 
 ('olunibia. That subject is provided for in the 2d article 
 of the treaty. 
 
 The jurisdiction of the Commission in this case is, 
 therefore, restricted to the matters arising out of the 3d 
 and 4th articles of the treat}', and does not embrace the 
 navigation of the Columbia. 
 
 It we are correct in this view, the question of the navi- 
 gation of the Columbia river is effectually disposed of, so 
 far as the present Commission is concerned. 
 
 An attempt is nuide in the Company's argument to 
 claim the navigation of the Columbia as a " possessory 
 right," embraced under the general provisions in refer- 
 ence to "possessory rights " in the 3d and 4th articles of 
 the treaty of 1846 ; but it is submitted, that those articles 
 have no reference to the right of navis-ation of the Co- 
 lumbia. 
 
 This, we consider, is manifest. 
 
 1. From the very terms of the 31 article, which pro- 
 vides that " the possessory rights of the Hudson's Bay 
 Company, * * who may be already in the occui)ation 
 of land or other property lawfully acquired within said 
 territory, shall be respected." 
 
 The term " possessory rights," as we comprehend it, 
 necessarily imports in this connection rights of posses- 
 sion growing out of the occupancy of land or other pro- 
 perty. The right of navigation is not, as we understand 
 it, a possessory right in this sense. 
 
 In order to understand what the "possessory rights " 
 of the Company might entitle them to in reference to the 
 right of navigation, we will, to put the case in the strong- 
 est light for the Company, suppose that they were the 
 owners in fee simple of the land at Vancouver, and such 
 other. points as they claimed along the river, and then in- 
 quire what their rights in reference to the river would be. 
 They would have such riparian rights therein, and the land 
 
 f|!. 
 
72 
 
 ■M'V} 
 
 to that extent under the water; and tlie water Howing over 
 would heloui^ to the riparian proprietor, subject to the 
 public easement of a right of navigation. 
 Angell on Water Courses, p. 597. 
 
 "Where the water course is not navigable, the riparian 
 proprietor is absolute owner of the land and water, and 
 may as proprietor have exclusive use of it in every form 
 in which it is capable of being used, subject to one limi- 
 tation, that he does not prejudice the proprietors Jibove 
 or below him. 
 
 From this brief summary of the law, it is evident that 
 the Company's " possessory rights " to land on the Co- 
 lumbia give them no right to the navigation of the Co- 
 lumbia distinct from the common right of every citizen 
 to navigate this common highwav. 
 
 The eflbrt to claim the right of navigation of the Co- 
 lumbia, as a "possessory right," has, it is submitted, no 
 basis whatever to rest upon. 
 
 What makes this view of the subject conclusive, is the 
 fact that this right of navigation is provided for specially 
 in a separate and distinct article, the 2d article of the 
 treaty. 
 
 The extent of riparian rights depend on the character 
 of the river. 
 
 If the river is navigable, it is not subject to private 
 ownership. The proprietor of the land on the river holds 
 only to the bank. The water of the river, and the ground 
 covered by water, are public domain. 
 Angell on Water Courses, p. 608. 
 
 In reference to a river of this character, the riparian 
 proprietor has no more right or i)rivilege than any other 
 person. He has no property or possessor}' right whatever 
 by reason of his ownership of the bank. Whatever privi- 
 lege he has in regard to the river, he owes it, not to his 
 being a riparian proprietor, but a citizen. If, then, the Co- 
 lumbia river at Vancouver is aflected by the tide, the 
 Company, if owners in fee, would have no property right 
 
78 
 
 't : 
 
 g over 
 to tlie 
 
 pariau 
 21', and 
 V form 
 e limi- 
 abovo 
 
 lit that 
 he Co- 
 be Co- 
 citizeii 
 
 tbe Co- 
 tted, no 
 
 e, is tbe 
 
 pecially 
 
 of the 
 
 laractor 
 
 private 
 3r holds 
 sround 
 
 riparian 
 y other 
 hatever 
 er privi- 
 t to his 
 the Co- 
 ble, the 
 ty right 
 
 or riglft of any kind in tlio river doducible from proju-io- 
 torsliip of the ])nnk. Thoy would stand in regard to 
 water rights or privik'ges precisely on the same footing 
 as other inhabitants of the country. 
 
 If tlie " possessory riglits " of the Company had l)oen 
 supposed to cnd)race tlie right of navigation of the Colum- 
 bia, there would have been no use for the 2d article. The 
 insertion of a sjjocial article in reference to the naviga- 
 tion of the river, shows that the parties, wko framed the 
 treaty su}>posed this matter was not covered by the arti- 
 cle in regard to tbe [)ossessory rights of the Company. 
 
 The Company have never liad any particular right in 
 the rivers of the territory, other than such as they had in 
 the air and the light. They never posscisnl navigable 
 waters in the same sense that thay possessed land. 
 
 Further, to show that this right of navigation is a 
 matter not end)raced in the term " possessory rights" as 
 used in the treaty, it is proper to understand, with some 
 jtrecision, what is meant by article 2d, providing for the 
 navigation of the Columbia. 
 
 It does not mean merely the privilege of having the 
 personnel and the goods of the Company transported on 
 the same footing as citij^ens of the Uidted States. That 
 privilege, if not secured by prior existing treaties, would, 
 it is suhmitted, have been agreed on the principle of the 
 comity of nations, and certainly by the practice of the 
 United States in like cases. 
 
 But the privilege of navigation secured by the first 
 clause of the article to "the Hudson's Ihiy Company, and 
 all British subjects trading with the same," means some- 
 thing more. It means, as we conceive, that the Compa- 
 ny, and all British subjects trading with the same, may 
 navigate the Columbia in British vessels, officered ]^y 
 British officers, manned by British crews, and sailing 
 under the British flag. 
 
 Now it is ridiculous to claim that such a great ridit as 
 this can be claimed as a "possessory right" in perpetuity, 
 because of the occu[)aucy of laud in the territory. 
 10 
 
 ^1: 
 
74 
 
 "We assume, tlien, as a matter too clear for denial, that 
 tlie right of navigation of the Columbia is not one of 
 "the possessory riglits " of the Compaiiy secnrod by the 
 od article, and is a matter provided for by the 2d article, 
 and no other. 
 
 In regard to this right of navigation, embraced, as we 
 think, exclusively in the 3d article, we have but little 
 more to say. 
 
 1. We admit this right precisely as laid down in the 
 2d article, and we have no disposition to cii cum scribe it 
 in anj' degree. "We do not regard its rightful exercise by 
 the Company as of any detriment whatever to the United 
 States, and we hope the Company will indulge themselves 
 in the largest possible exercise of this great privilege. 
 
 2. We cannot refrain from expressing our gratification 
 at the great value which the Company find this right of 
 navigation to be to them, estimating it, as they do, at the 
 sum of $1,400,000, with the assurance that "the actual 
 value is much more at the present time, and its progres- 
 sive increase hereafter cannot be easily estimated." We 
 must be permitted, however, to express both regret and 
 surprise that a right so immensely valuable should, so far 
 as wo are informed, be in a condition of practical non- 
 user at the present time. It would seem eminently ex- 
 pedient that the Company should make the largest pos- 
 sible use of a right which they appreciate so very higlily. 
 
 3. AVe would further remark in this connection, that, 
 if the United States should ever desire to put an end to 
 this privilege of navigation, it would be properly a sub- 
 ject of negotiation between the two sovereign powers, 
 who are parties to the treaty, inasmuch as it is not merely 
 the Hudson's Bay Company who are to have this privi- 
 lege of navigation, but "all British subjects trading with 
 the same." And as the Company could only relinquish 
 this rii>;ht of navigation for themselves, and not for " all 
 British subjects," it would be impossible to make a satis- 
 factory negotiation with the Company alone. 
 
that, 
 ud to 
 sub- 
 )wcr3, 
 iicvcly 
 privi- 
 jwith 
 qiiisli 
 " all 
 1, satis- 
 
 76 
 
 The Portagks. 
 
 There is nothing in the pretensions of the Company more 
 preposterous, extraordinary as most of them are, than the 
 claim of damages from the United States on the ground of the 
 alleged obstructions to the navigation of the Columbia, caused 
 by local improvements at the portages on that river. 
 
 Theae alleged obstructions consist in well-appointed rail- 
 roads in full operation, open to the use of the Company, as to 
 all others who choose to avail themselves of such facilities. 
 
 The railroads at these points, running in connection with 
 steamers on the river above and below the portages, render the 
 transportation of freight and passengers far more expeditious 
 and cheaper than under the old system of bateaus, with carriage 
 across the portages, which the Company had been accustomed 
 to in past times. That transportation on the Columbia is im- 
 proved by being done by steamboats and railroads is a propo- 
 sition so clear, as to be incapable of argument. 
 
 We had supposed, if any thing distinguishes the age in which 
 we live from the centuries preceding, it is its wonderful ma- 
 terial progress ; and one of the greatest glories of this progress, 
 the application of steam to land and water-carriage. But 
 this great achievement, which, if it has not abolished distance, 
 has in a large degree overcome it, does not seem to meet the 
 approval of the Company. They sigh for the old-fashioned 
 mode of stemming the current by human force, and carrying 
 the boats and tlicir freight on the heads of Indians around 
 the rapids of the river. Beinj?; so attached to this old system, 
 we are surprised that the Company does not still resort to it. 
 The United States have no objection whatever to their doing 
 so. And, according to the evidence, there is no obstacle in the 
 way of their so doing. 
 
 Cain, witness, says: 
 
 *' The portages on the Washington siJe of the Columbia 
 river have never been obstructed. I am not familiar with the 
 Oregon side, on the Lower Columbia; but the portages of the 
 Upper Columbia, on both sitlcs, both Oregon and Washinf^- 
 ton, have never been obstructed." (Evidence for U. S., Pt. 
 2, p. 240, answer 10.) 
 
 t.J- 
 
TG 
 
 ^('i;l. 
 
 "There is a wao;on road on each side of the river at the 
 Cascades. The one on the Washington side has always heen 
 a public highway. There is also a wagon road at the Dalles 
 portage, which is a public highway." [lb. p. 248, answer 2.) 
 
 Ho further says, the means of transportation across these 
 portages, for wagons or pack-animals, or for the backs of men, 
 are better than they were prior to the construction of the rail- 
 roads, [lb., p. 248, answer 3.) 
 
 Ainsworth, witness, says : 
 
 " There is a public trail and highway, that anyone can 
 travel, both at the Cascades and Dalles. (U. S. Ev., Vt. 1, p. 
 6, ans. 13.) 
 
 Even Mr. Mactavish, who, to say the least, is disposed to 
 look at matters in a sufficiently favorable, rose-colored, or, 
 rather gorgeously-purple, light for the Company, is driven 
 to abandon tbo portage complaint. He tcstlHes as follows : 
 
 Int. 885. " Had the Company ever been deprived of, or 
 abridged in, the use of the portages of tlic Columbia river? 
 
 "Ans. Not that I remember of." (U. S. Mis. Ev., p. 173, 
 ans. 885.) 
 
 So that the claim is in fact given up. 
 
 The course of examination of witnesses on the part of the 
 Company's counsel might induce one to suspect that they 
 meant to claim the portages as their property. Such claim 
 would be quite in keeping with other claims of theirs. They 
 set up title to vast regions of land, wheresoever they had cut 
 trees on the ground, or allowed cattle to wander wild in limit- 
 less waste. They claim exclusive rights of trade. The Co- 
 lumbia and all its affluents are theirs, according to their own 
 pretensions. Why should they not claim every highway in 
 the country, actual or possible, and every track ever traversed 
 by their servants and horses, or their tributary Indians? To 
 do so, would be entirely in the spirit of their grasping, rapa- 
 cious, exorbitant, and presumptuous character and conduct, as 
 exhibited in their general claims against the United States. 
 
 The Company seems to proceed on the hypothesis, that what- 
 ever, on the continent of America, it, or any of its factors, 
 agents, clerks, or servants, or its horses, cattle, sheep, or 
 dogs, ever used or abused, becomes its property thenceforth; 
 
77 
 
 To 
 
 }cp, 
 
 or 
 
 and after advancing such claims, it might well now file an 
 amcndmont, claiming a sccoixl half million extra for the at- 
 mospheric air, and a third half Hullion extra for the sun light, 
 of Oregon and Washington. Its uniraaginablo ravenousness 
 passes the limits of indignation, and reaches the region of ridi- 
 cule and contempt. 
 
 (E.) — ]\IlS(KI,LAXEOUK PoiXTS. 
 
 /. — BemarlcH on Certain Witnesses. 
 
 The cour,-;e of the counsel of the Hudson's Bay Coin])nny jus- 
 tifies further coninient on a jtoint, heretofore touched, indeed, 
 namely, the character of the witnesses produced in hehalf of the 
 Coni])any. 
 
 Those who have been in the ( 'onipnny's service, though their 
 connection with it is at an end, may well be sup[)oscd to syni- 
 athizc very deej)ly with it, and to feel nud testify, therefore, 
 under a certain prejudice. 
 
 Those, who are still in the service of the Com])any, have, gen- 
 erally si)eaking, a direct pecuniary interest in the result. They 
 testify, theref'oj'e, to put nu)ney into their own [)0ckcts. The 
 evidence of these witnesses should be closely scrutini/e<l, to 
 say the least, and due allowance made for the bias on thoii- part. 
 
 We think it proper to cite the names of these witnesses. 
 
 1. — A\'itnesscs formerly in service of Company. 
 
 Thomas Lowe was a clerk in Company's service from 18-11 to 
 
 1850. Co.'s Ev.. ]). 7. 
 
 Sir James Douglas was in the service of the Com])any from 
 1821 to 1859. During the latter part of his service he was 
 chief factor. lb., p. 49. 
 
 H. F. Crate was in service of Com[)any, Avitli some intermis- 
 sion, from 1832 to 18G0. lb., p. 104. 
 
 Thomas Flctt generally in service of Company from 1833 to 
 
 1851. lb., p. 1G7. 
 
 Xeil McArthur was in service of Company ten years. lb., 
 p. Gl. 
 
 N. McKinlay was a chief trader. lb., 72. 
 
78 
 
 2. — Witnesses, in service of Company when cxauilned, or 
 pecuniarily interested. 
 
 Alexander C. Vnderson, 
 
 Was in (Jouipany', 8ervi(!C from 18.'U to 1851. From 18 46 
 to 18o I, was a chief trader. Since 1854 has not been in the 
 employment of the Company, but retains " a retrospective pecu- 
 niary interest." Co.'s Ev., p. 33. 
 
 This witness attests that the Coin])any's claim at Colvile, " in- 
 cludinjr White Mud pasturage and all, is from five to six 
 miles square, makiuj^ sixteen to twenty thousand acres, more or 
 less." lb., p. 30. 
 
 Values the cuHivablo land in the nei<^hborhood of the fort 
 at about fi^25 per acre ; estimates the cultivable land about the 
 fort at fifteen hundred acres, and back of the fort, in the vicinity 
 of White Mud at at least three tiiousand acres more. lb., 3G. 
 Values remahider of this land claim at $1 25 per acre. lb., 
 p. 37. 
 
 Describes Comj)any's land at Okanagan : estimates the horse 
 range at Okanagan at fmn twenty-five lo thirty miles, "in 
 which the dilferent cnclosv.res were contained." Says certain 
 portions of it were very fine pasture, lb., p. 37. Values 
 land at Okanagan at $50,000. Values improvements and 
 land at Okanagan at X30,000. lb., p. 38. 
 
 Values the po.st at Colvile, including the White Mud and 
 the outposts of the Kootanais and Flatheads, at jC100,000, lb., 
 p. 39. 
 
 (States extent of the pasture land at Vancouver. lb., p. 39. 
 
 Witness' interest is one eighty-fifth in the^fur-trade branch, 
 lb., p. 39. 
 
 Values Vancouver in 1852-'3 at £200,000. lb., p. 48. 
 
 William Charles, 
 
 Is a chief trader. lb., p. 171. 
 Asserts abandonment of W^alla- Walla and property there by 
 order of the United States Indian agent. lb., p. 173. 
 
79 
 
 in- 
 
 liorse 
 
 H. A. Tuzo, 
 
 Is !i cliiof trndor. Th., p. 17G. 
 .I)o.«oril)(>s Coiupany's claim jit Vancouver. Ih., p. 17(5. 
 A'aliic.s tli(! hiiildiiin; at N'aiKiouvor. Ih., j). 177-S. Values 
 land at Vaneouvci-. I h., j). 171). Tlunks Company mij,dit have 
 realizod 8l,()()(),()0() by sale of town site at Vanccmvcr. lb., 
 182. Thiidvs Company lost S40,0()<) or .So(),()0() per annum of 
 profit on sale of agricultural produce from two tliousand acres 
 of land at Vancouver, lb., p. 182. 
 
 Dugald ]\[aetavish, 
 
 Is chief factor. lb., p. 197. 
 
 Ilis interest is two eighty-fifths of forty one hundred parts of 
 the profits of the fur trade, lb., p. ";:.'i. " ,\Iy interest extends 
 to the whole amount of the claim of the Hudson's IVxy Com- 
 pany." lb., p. 222. 
 
 Mr. Maetavish is, perhaps, the most important of all the 
 Company's witnesses. His testimony is very extravagant for 
 the Company, especially in reference to the extent and value of 
 the claim at \"ancouver. 
 
 We have devoted already some space to Mr. :Mactavish, 
 but shall i)resently refer to him iji particular relations. 
 
 •I'; 
 
 Angus McDouc'dd, 
 
 Is chief trader. Company's Ev., p. 150. 
 
 Describes Fort Hall. 
 
 Pasturage at along left side of Snake river for ciglitecn to 
 twenty miles, and extending southward about eleven miles, 
 lb., 152. 
 
 Says it would cost from seventy to one hundred and seventy 
 tliousand dollars to build Fort Hall. lb., p. 153. Would give 
 ^1,000,000 for the claim at Fort Hall. lb. The enclosed 
 land at Fort Hall is worth 820 to 830 an acre. lb. These 
 lands increased in value every year since 184G. lb. 
 
 Hcscribes post at Boise, (lb.,) and ce,nsiders it equally valua- 
 ble as Fort Hall. lb. The enclosed land at Boise worth, when 
 -witness was there, $50 an acre ; now it is worth much more. 
 
80 
 
 'I 
 
 '■1:.' ,J.'':I, 
 
 
 The uiioiH'.losccl land worth from Si 25 to $1 50 an acre, and 
 have iiicroasod in vahie shicc 184(1. Ih., 154. 
 
 A'ahics land at Walla- Walla. lb., ]). 155. 
 
 X'alnos the arable land at Colvilc at i^lO an acre, and tliat at 
 AVhite ;Mnd at the same. lb., IGO. Valnes the pasture land, 
 where hay is cut, at §5 an acre, the balance at $2 per acre. lb., 
 8160. Values the mill at Col vile at $20,000. lb. Values 
 building at Colvile at from $70,000 to 8120,000. I b. 
 
 Thinks, if he bought Fort Hall at $1,000,000, he would got 
 his money back by turning it into a zoological park ! ! lb., p. 
 162. 
 
 John M. AVark, 
 
 Is a chief trader. lb., p. 189. 
 
 Testifies circumstances under which Company left Vancouver, 
 lb., p. 189. 
 
 3. It will thus be seen tiiat the Company have relied in a very 
 large degree, in the proof of their claim, on the evidence of per- 
 sons in their service, who have a direct pecuniary interest in the 
 result. If the evidence of tlicse witnesses were stricken out, 
 the Company would have but little to stand upon. It is sub- 
 mitted that, in comparing this evidence with the evidence of the 
 numerous witnesses introduced by the United States, ample 
 allowance should be made for the evident bias under which 
 the interested witnesses speak, as manifested l)y the monstrous- 
 ness and ilagitousncss of their extravagant estimations. Tlieir 
 falsehood is established by numerous witnesses produced on the 
 part of the United States. 
 
 This important fact, which we have just referred to, namely, 
 the effort of the Company to make out its case, especially on the 
 point of value of the various posts, in such a large degree, by 
 interested witnesses, receives vast additional signification, 
 when we remembei that the Company hav'c in their possession 
 the books of the various posts, which would show i)re(usely the 
 cost of each, at least so far as the items of materials and wases 
 are concerned, wnicli are indeed the only substantial items of 
 cost in the case. 
 
 That this conduct of the Company, in relying upon the bubble 
 
81 
 
 
 and 
 
 bubble 
 
 te.stimony oPintorosteil witnesses to prove their (!ase, when they 
 persistently refuse to proJu(^c their books, must weij^h fatally 
 against thcMu, we cannot but assuin(>. In a ease before any 
 oourt of justice, in a suit between individuals, sucii conduct on 
 the part of the plaintilf would furuisii conclusive presunii)tioii 
 of bad faith, which, unexplained, would necessitate a verdict 
 for defendant. 
 
 4. The important ro?f performed by Factor ]N[actavish, as wit- 
 ness and agent of the Company, demands a special notice of his 
 testimony. 
 
 (a) Mr. Mactavish has been in the continuous service of tlic 
 Company since LSo-'i, rising from thu position of clerk to the high 
 dignity of chief factor. J)uring this long period of service y\v. 
 Mactavish has been located at v^arious and distant 2)oints in the 
 service of the Company. At one time we hear of him among the 
 frozen regions of IJalUn's Bay, next at the post of ^Eechipecoton 
 on Lake Superior, tlieu on the island of Montreal, in 18^19 
 hii crossed tiie Rocky ]\[ouutains, the next year he retraced his 
 steps to JJaltin's P>\y. We next hear of him at Vancouver, 
 .San Francisco, tlie Sandwich Islands, and Fnghind; and finally 
 he ap[)ears in Canada and this portion of the United States, for 
 the purj)ose, principally, as it seems, of supervising the prosecu- 
 tion of the Company's claim, and incidentally of giving evidence. 
 
 We have referred thus to Mr. ^Ia(!tavish's history, in order to 
 show the important position he occupied as an official in the 
 Company. (Jne so long in the service of the Company, trans- 
 ferred in his career from one locality to another so widely se]>a- 
 ratcd, and finally engaged in the most important matter which 
 this powerful Company now has pending, must occupy a very 
 distinguished position in the official ranks of the Company. 
 It IS fair to presume that no official of the Company of his 
 grade possesses a larger degree of its confidence, and is more 
 familiar with its history and oifleial acts, its j)urposes, wishes, 
 and clain'K, so far at least as this ease is concerned. 
 
 He may justly be considered in this case as the embodiment 
 of the Company, its type, and representative. 
 
 These circumstances give peculiar importance to his testi- 
 
 monv, and justify us in a closer scrutiny of it, than of the cvi- 
 11 
 
 
82 
 
 I 
 
 dcnce of ordinary witnesses. When Mr. Maetavish is on the 
 stand it is in effect the Company in propria px^'^'^ono. AVlicn 
 ]\Ir. J\[actavish speaks, it is the voice of tlic Company A^•c Jiear. 
 
 AVitli these remarks, \ve proceed to consider Mr. ]\L;ctavis]i's 
 testimony. 
 
 {/>) A\ hy Mr. Maetavish is here. 
 
 3 I 
 
 "Int. 114. Are you not really Iiere acting as client in this 
 case. 
 
 " Ans. I am here not as client, but as a chief factor of the Hud- 
 son's Bay Coni]>any. 
 
 "Int. 115. Arc you not here as an agent of that Company, to 
 look after their interest in this case ? 
 
 " Ans. I suppose I am. 
 
 "Int. IIG. Under whose directions or orders are you here? 
 
 " Ans. My orders come from the Hudson's l^ay J louse in Lon- 
 don. 
 
 "Int. 117. When did you receive those orders? 
 
 " xVns. I left London on the 28t]i of October, 18(54, previous to 
 which I received my orders ; since then I have occasionally had 
 communications with the house." 
 
 It will thus be seen that Mr. Maetavish is present during the 
 progress of this case, as the real representative of tlie (V)mj)any, 
 under direct orders from London. He sa)'s, in answer to Int. 
 104: 
 
 "My princij>al duty at present is in Washington, looking 
 after tlie proceedings going on before the Connnissioners in this 
 
 case 
 
 jj 
 
 In answer to Int. 105 he says : 
 
 " I did go from :Montreal to that place, (Charlotte, X. C.,) 
 and Avas present when Admiral AVilkes was examined." 
 
 In answer to Int. 110, "Have you not been ])resent, and have 
 you not desired to be present, at the examination of various other 
 witnesses of the United States in this case since January last," he 
 says : 
 
 " I have been present of my own desire." 
 
 Thus, when we consider the able counsel by whom the Com- 
 
83 
 
 ;• tho 
 my, 
 Int. 
 
 this 
 
 liavo 
 tlior 
 "ho 
 
 ■} 
 
 pany were ropresoiitcd in the coiidiiet of this eau^sp, tlic voiy 
 gTwit ini[)ortaii('e, attached to ^Ii\ Mactavisii's services l)v the 
 Company, becomes inaiiit'est. Even in the matter of examinin*^ 
 witnesses, it was deemed Important for ]Mr. Mactavish to he on 
 Jiand. ISo liicewise in the pre})aration of the memorial, Mr. 
 Mactavish's valnabk; services are called into re(j[nisition. On 
 being- asked (Int. 12-j) if lie did not assist the connsel in prepar- 
 ing the memorial, he says : 
 
 " I believe I tlid so." Miscellaneous evidence for the United 
 States, p. 05. 
 
 AVe propose now to point out some of the peculiarities of Mr. 
 Mactavish's testimony. 
 
 ((;) In reference to the buildings at Vancouver, ho says, in 
 answer to Int. 5, first examination: 
 
 " In 184G, the establishment at Vancouver, with its out-build- 
 ings, was in very thorough order, having been lately nearly all 
 rebuilt." Company's Evidence, p. 200. 
 
 Again he says: " U]) to the time I left Vancouver in 18o8j 
 the buildings in the occupation of the Company were k(!pt in 
 thorough re])air." Jb., p. 201. 
 
 Upon this point other witnesses, with ample personal know- 
 ledge, of unim[)eachable character, and not swearing up a bogus 
 claim, positively c;ontradict and fully dis[)rove these statements 
 of ]Mr. Mactavish. 
 
 The Hon. Mr. Xesmith says! "As far back as 184'), the 
 buildings were becoming wrecked and <lilapidatcd on account of 
 the insuiliciency of the foundations." U. S. Evidence, part 2, 
 
 pa; 
 
 ire 
 
 23. 
 
 oni- 
 
 Lloyd Brooke, in 1849, speaks of several of the houses as 
 dilapidated. Speaking in reference! to 18()0, " I think there had 
 b^ien no repair-* on the buildings, and they had sulfered the usual 
 wear often or eleven years." lb., ])age 12i). 
 
 \V. ir. Gray, referring to a period substupient to 18.'}(), says: 
 " .Vll the old buildings were prop[»ed u[), and were in a miser- 
 able condition, lb., pagi! I(i4. Further, he s;iys, s])eaking of 
 sometime after 184(j, "the main house was in rather a sliaUy 
 condition." lb., page 181. 
 
 Lewis Love says, from 1850 to 1854, "the buiMings were 
 
 "i 
 
' * . 
 
 84 
 
 getting- pretty okl from appeunmee. * "' Sojuo of tlie flooi's 
 were settling out of shape. * '^- The outMard a})pearan('e of 
 the buihlings hjoked as if they were going to deeay." 11),, 
 l)age 237. 
 
 Levi Douthet says, in 1853, "tlu* buildings looked very old; 
 tlie sills, 1 think, were inueh deeayed." II)., page 24G. 
 
 General Ingalls, speaking in referenee to iSdO, says the buihl- 
 ings were " very dilapidated." lb., page V>. 
 
 Colonel C. 13. AVagner, speaking of l«So7, says: "The build- 
 ings were old, and some were very nuieh dila[)idated." United 
 States Evidenee, part 2, page 50. 
 
 Major Chauncey MeKeever, referring to 1<S()0, says : "They 
 (the buildings) were all in a dilapidated eondition." lb., ]). 78. 
 
 Major General A. J. Smith, reilL-rring to LSOO, says the build- 
 ings "were very dilapidated; not habitable." lb., page 84. 
 
 Major Alfred Pleasanton, speaking in regard to the interval 
 of time from 1858 to 18(50, savs : "The whole establishment 
 was out of repair, dilapidated." lb., page l.')5. 
 
 Major General V. H. Sheridan says, referring to LS55-'50, 
 "the large, gloomy looking storehouses insid(> the pieket enclos- 
 ure were, I think, very old, * * and had the deeay of old 
 age." lb., page 207. 
 
 General lienjamin Alvord says: "In 1859, when the Com- 
 pany left, the buildings were most of them very much di]a[)i- 
 dated." lb., page 351. 
 
 George Gibbs says : " The buildings in and outside of the fort 
 were all old and considerably deeayed." lb., page 408. 
 
 So much upon this point. 
 
 ((?) Mr. Maetavish says, Com])any's Evidence, ])age 212: "At 
 the diftercnt establishments, particularly at Eort Vanei)uver, 
 there were roads made at considerable outlay." 
 
 Wc caiuiot see how the roads at Vancouver should cost so 
 much, for the soil there is generally gravelly. 
 
 On this point Lloyd Brooke says, in reference to the roads at 
 Vancouver : " 1 know of no roads of the same character in 
 Oregon ; they arc better than the ordinary roads in ()reg<in on 
 which I have travelled, owing to the nature of the soil and line 
 
85 
 
 JOIU- 
 
 api- 
 ." fort 
 
 u 
 
 At 
 
 )St !?0 
 
 of tlio country. The roads Icadinji' to most of tlic plains l)t'foro- 
 nientlonod ])ass over oravolly soil." 
 
 Major Ja. ^fcFcrlv savs of the land around Vancouver, hack 
 of the stream : " It was not fertile, beinji' sandy and liravelly and 
 very dry durinji' the summer season." lb., ])a<;'e 121. 
 
 Afajor .Vli'red I'leasanton says the land around N'ancouver 
 was "uravelly and poor." lb., pau'c l.'UJ. 
 
 In short, without citinii' I'urther from the evidence, we may 
 assume, as a fact beyond dispute, that the land around N'ancouver 
 Mas sandy and ji'ravelly ; such bein<^ the fact, the cost of roads 
 could not have been nuich. 
 
 (r) Fiu'ther, ]Mr. Mactavish estimatesth(> valneof the establish- 
 ment at \'ancouver, with its outbuildin<;s, in 1S4(!, to the Com- 
 pany, at fr(»m $.'>()( ),(X)() to 8< )(»(),()()(,). Company's Kvi<U'nce, 
 paoe 200. 
 
 It is instructive to s(H' the value [)nt by other witnesses on this 
 establishment. 
 
 Ca])tain W . A. Howard says: "The buildinijs were rude 
 structures; made of the wood of tlie countrv ; built bv the com- 
 nion labor of the day ; I think $100,000 would be a larii'c allow- 
 ance for Ijuildinii; the fort and all its appurtenances. United 
 vStates Evidence, ])art 2, pau'c (u, Ans. 4. 
 
 C. Mclveever says, in l.S(jO, "I inspected the buildings in 
 June, 18()0; I considered the whoh; of them worth about 
 $1,000. United States Eviik'uee, part 2, pa.ue 7S, Ans. (>. 
 
 Major (ieneral Inu'alls savs he "could have built the Ibrt with 
 its stocka(k' and buildinu's, within three vears before 1(S4J), for 
 $.jO/)0()." Uiuted States Evidence, ])art 2, i)a,<.(> r>2<l, Ans. .■>. 
 "Thinks one hundred men, ten bcin^- skilled and the rest ordi- 
 narv, could hive built post nntstlv in the eourso of a vear. lb., 
 l)a_<2,'e o.'>(), Ans. (J. 
 
 Chief Justice Xelson says, in relerence to this p^nt: "The 
 orij^inal cost I know nothinii' about, except as Dr. Mcliau<ihliu 
 toklme; he state I it cost about §100,000, all told; as to their 
 value in 18-V2 it is dilHcult for me to answer; they had, in my 
 judginent, outlived their day." United States Evidence, part 2, 
 pajre 80, Ans. 10. 
 
 *. i. 
 ■ V'l 
 
 '} •■'■■ 
 
86 
 
 
 CM[)tiiiii C Ji. \Vn<rn(n' says in 1801 biiildinn; witliin stockado 
 not Avorth over $(j,0()(> or §8,000. Uniti'<l States Kvi<l('iU'C', [)ai't 
 2, i)a,u(' (]0. 
 
 Major (iciicral A. .J. Smith says in I8(j0 the valiU! of the 
 (^to('ka(l(! and hiiildiiijis to th(! (loveniincut woidd not ho over 
 $2 ")0 ; "they were ^'oiniL!; to decay ra[)idly; dry rot." United 
 States I'Aidence, ])ai't 2, ])a<>;e 84. 
 
 :\ra;)(»r Uohen McFeely says: "To the United States tlie 
 bnihliiiii's liad no vahie at all in J8()0, either as storehonsts or 
 lor (|nai'ters." United States Kvidenee, |)art 2, pai^e 111*, A lis. o. 
 Major (ieneral P. 11. Sherichin, reterrint;" to LSoo— 'oO, says: 
 " 1 can reeolleet very well that niy impressions at the time wen; 
 that it would he a ^ood thiiiu' if they (tlu! biiildin«>'s) would hnrn 
 <h>wn." 1 nited States Kvidenee, part 2, pane 28(5, Ans. 4. 
 
 T. \\. Peale does not think the erection of the hnildinns and 
 stockade eonhl have cost over !*>2"),0()0. United States Kvidenee, 
 ])art 2, paiic ;>4(), Ans. 12. 
 
 (Jeiieral JJenjaniin Alvord estimates tlie valne ol' the stockade 
 and all tli" hnildiiius owned by the conij»any within the j)ickets 
 in ] 8o2 at about §25,000. United States Evidence, part 2, page 
 :Jol, Ans. (J. 
 
 AVithont ])nrsiiiiig this iioint any further, Ave may safely con- 
 clude that the testimony (»f Mr. Mactavish is not reconcilable 
 ■with any hypothesis of common truth or good faith, and stands 
 Jiere in ])riiir to his dishonor as a gentleman and a man. 
 
 (_/") in his lirst examination ]Mr. Mactavis'i inibrms ns, "I never 
 had any particular charge of the farming ojieratioiis of the coni- 
 jiany. My particular work was \vith the books, but I rode about 
 and knew jiretty much what was going on." Company's Evi- 
 dence, page 22'), Ans. 11. 
 
 This declaration, mtide in the first step taken by him as a wit- 
 ness, gave hopc^ f(»r miicli valntible information ; but on his final 
 examinitioii Mr. ^[act:lvish, after a larger experience of the wit- 
 ness vocation, is inclined to take a much more modest view of 
 his capabilities for giving informtition. X^'ry much to our sur- 
 ])rise, after the st;'k'ineut mad(! by him, to which we have 
 allndiHl, he infi)rms us, in answer to int. 41H), that " My 
 acipiaintauee with the lands used by the company arose siini)ly 
 
87 
 
 stockado 
 iit'c, part 
 
 X) ol* the 
 
 Ix; f)vcr 
 
 United 
 
 ates the 
 loust's or 
 , Alls. ~). 
 •(), savs : 
 nic wvw. 
 idd hum 
 s. 4. 
 
 iiiji'.s and 
 iVidencc, 
 
 .st(K'l<adc 
 piclvc'ts 
 •t 2, page 
 
 fely ron- 
 oneilable 
 d .stands 
 
 L. 
 
 "I never 
 tlie coni- 
 )de about 
 ly'.s I']vi- 
 
 as a Nvit- 
 liis Jinal 
 'the wit- 
 ; view of 
 our sur- 
 \vv, have 
 at "My 
 e simply 
 
 nMu ruhu,,. about at times; I hti.I no <.haru-e nhalev.r of th.^ 
 Mrm.no- op.,atious of the .-ompany, so that I knew but li.th- as 
 toNvhat was gomu- ou upou the hu.,ls, in eo,„,.anso,. uith (ho 
 otheer or olluvrs in <.haro,. who ha.l that sp.vial d.Ltv iu .-l.ar.v " 
 _ Wiu^ther .Mr. Ma.-tavish's (irst n.nlidenee in his ju.au's of 
 inlormat.on, or his subsHpu-nt .lillidcnee upon the subject, i. the 
 best founded, we will not pr(>teu.l to say. Jt appears to us, how- 
 ever, not uulik(>ly, judnin. r,.,.u the character of his evi.h.uce 
 that lie did at the outset place, p.-rhaps, too hi^h an estiu.ate upon 
 the value of h,s information. ( )u th(> other baud, we incline to 
 tlie opinion that Mr. Ma.-tavish permitt,-d his .nodestv to hive 
 too orcat ])Iay towards the close of his exann-natiou. ' 
 
 (V) As an illustration of this excessive luodcstv we would call 
 attention to some extracts from his testimony : 
 
 Int. U]:]. Was n,.t Dr. ArcLauuhlin cei.s.n-ed bv the Com- 
 pany's dn-eetorsfbr his kindness to American imminrants? 
 
 Alls. Jle never said so to jue. 
 
 Int. 014. J)o you not know that lie was? 
 
 Ans. 1 do not. 
 
 Int. 91 o. W'Jijit do you know about the matter? 
 
 Ans. I know nothino- further than I have said; 1 do not 
 know that I know anything' about it. 
 
 Int. 1)10. Did you ev.H- own any of the stock of the Puoct's 
 ►Sound Agricultural Comi)anv? '"^ 
 
 ^viis. I believe I had two shares. 
 
 Int. 917. When did you come in possession of them? 
 
 Ans. Some time, I think, in the year LS;]9 or 1840.' 
 
 Jut. 918. Do you own them now? 
 
 Ans. I think so. 
 
 Int. 919. AVhat is their par value? 
 
 Ans. I do not know; I have no papers here to refer to • I 
 recollect nothing about them, except the fact that I have the tno 
 shares. 
 
 Int. 920. How much have you ever paid on them ? 
 Alls. I think I jiaid £10 a share. 
 Int. 9^1. Did you j)ay that iu the beginning? 
 Ans. I think so. I cannot say. 
 
 
 I 
 .1- 
 
 f 
 
 ■%'■ 
 
}M- 
 
 88 
 
 Int. 922. Have yoii paid anythinj; on thorn since? 
 
 An.s. r do not rcnicniber to have done so. 
 
 Int. 1)2.'). Have you received any dividen<ls upon them? 
 
 Ans. I think so. 
 
 Int. 924. M'hen was your first dividend, and what was it? 
 
 ^\ns. I do not recollect; it was some time a,<i"o. 
 
 Int. {125. When was your last dividend, and what was it? 
 
 .Vns. That I cannot answer, neither as to time or amount. 
 
 Int. 927. What was the capital stock of the Com[)any ? 
 
 Ans. 1 cannot say. 
 
 (A) In reference to the cattle, Mr. Mactavishsays : "There must 
 liive been a good many cattle lost in the winter, from time to 
 time." Co.'s Ev., p. 224, ans. 20. In the iinal examination 
 Mr Mactavish seems disposed to review and overrule his first 
 opinion on this ])oint. He says, in answer to — 
 
 Int. .')94, " Were not a a great many cattle lost in the winter 
 from time to time?" 
 
 " Ans. I don't know that there were absolutely many. U. 
 S. Miscellaneous Ev., p. 108. 
 
 Which of these statements is correct wc will not undertake to 
 say, but our impression is that the first statement is nearer the 
 truth of history, and we think Mr. Mactavish might have safely 
 stood upon it, without fear of contradiction. 
 
 (/) In iiis first examination, Mr. Mactavish says, in regard to 
 the eastern line: 
 
 "I think there was some boundary marked or blazed out for 
 a mile or two back from the river. 
 
 "(^ues. IG. Did you ever see any such marks or boundary 
 line? 
 
 " Ans. !My impression is that I have seen them, but I could 
 pot be positive, it is so long since I was there." Co.'s Ev., p. 
 
 In his final examination Mr. Mactavish savs : 
 
 " Int. 44-'>. Did you ever sec these blazes? 
 "Ans. I have some recollection of seeing them. 
 
89 
 
 "liif. 111. Sliito all tliiit you distinctly rooollont nUout tlu-so 
 blazes. 
 
 " A us. r ri^t'i)llo!'t tlio ti'o's bltizotl tlioro about a mile inland, 
 t\w [!■('(>> were bln/cd licrc and thoro. 
 
 "Int. l-")(). I[()\v lonii" a distanco do yon think that you 
 renuMiibcr that you saw that the trees Avere blazed? 
 
 "Ans. l-'roni a (|uartov to half a, mile." U. S. Ev., ^Eiseol- 
 lancous, pp. 114, 115. 
 
 This evidence is curious as showinsj that memory may ')ecomo 
 more vivid with the llii::ht of time. When jNIr. ]\[aotavish was 
 first examined he could not be positive that he liad ever seen 
 the blazes on the tre;vs, "it was so lon<>; sin(!e," but in his last 
 examination, his nuMuoiy, from some unknown cause, had im- 
 j>roved, and he roniembored that the trees were really blazed 
 al)out a mile inland. IJut in the twinklim^ of an eye his mem- 
 ory aiiain became impaired, and ho only remenibor.s scoinj^ that 
 the trees were l>lazed from a ([uartcr to half a mile. 
 
 In deliuinti; the boundaries of the land at Vancouver, ]Mr. 
 Mactavish savs the lines runniny; inland from the river, run in 
 a northerly direction. Answer to Jut. 341, p. 99. Jilut immc- 
 diatelv on boinir shown the map of the surroundiny; couutrv, he 
 admits that he should have said the line running inland from 
 the mouth of the Cathlai)Ootle must run in an eastern direc- 
 tion. 1'his was a very important error, and does not impress 
 us with the witness' care in defining boundaries. 
 
 (/•) ]N[r. Mactavish says, in reference to Vancouver, in answer 
 to Int. (]{]•), U. S. ]\fis. E., ]). 145, " I don't know now what the 
 Comj^any's actual land claim there is." 
 
 This seems very strange, when m'C remember that the witness 
 is here as the representative of the Company. Further, on tiiis 
 2>oint, the witness says : 
 
 "Int. G54. Did vou, at the time vou wrote the letter referred 
 to in 'interrogatorv G47,' know the claim or claims to land on 
 the Columbia river, near Vancouver, made by the Hudson's 
 Bay Company. 
 
 " Ans. I was not aware what the claim was." 
 
 Again, he says, in answer to Int. 837, that he knows "only 
 12 
 
00 
 
 ' ' 'i ! 
 
 ik' 
 
 m 
 
 by supposition" that the tract of land around Vancouver was 
 claimed l)y the Company Ix-fore 1840. T^. S. ]Mis. Kv., p. 99. 
 When he is asked, "Int. .'ioS. Why do you supjjose they (the 
 Company) claimed it (the land at Vancouver) before 1840," 
 he says, " because the Company used and occupied the land." 
 Further: 
 
 "Int. I3.'}9. Have you any other reason for supposing- they 
 claimed it before 18G0." 
 
 Ans. Not that 1 remember of." 
 
 One of the chief factors, and one stationed at Vancouver, does 
 not remember havinjij any other reason for sujjposing that the 
 Conn)any claimed this land, e.\ce[)t that at one time they had 
 nse<l and occn[)ied it. 
 
 (l) There is one further statement of this witness to which we 
 would call attention. It is the answer to Int. 150. 
 
 "Int. 150. Do you mean to say that one hundred and fifty 
 engaged servants of the Company were employed for seven full 
 years, beginning with the autumn of the year 18.'i9, in making 
 permanent improvements at and around the post at Vancouver? 
 
 " Ans. There may have been a greater number sometimes and 
 fewer at others, but to the best of my knowledge and belief, I 
 think that number was so employed on an average one year to 
 another." 
 
 This statement is so extraordinary as to need no comment. 
 
 (m) Be it remeni bered, also, that all this peculiar evidence comes 
 from Mr. INIaciavish in the face of the suppression of the annals 
 of the Company, the existence of which is proved by himself, 
 which would have constituted the best and highest proof of cost 
 as an element of value ; and the non-appearance of which is so 
 extraordinary, Avhether imputable to the fault of the agents of 
 the Company to the prejudice of it, or the fault of the Company 
 to the prejudice of the United States. 
 
 III. Suppression of its Accounts ly the Company. 
 
 The Company present a very large claim against the United 
 States, which consists in considerable part of the assumed 
 cost and value of the buildings and various improvements at 
 the different posts named in the memorial. 
 
91 
 
 luul 
 
 Jnited 
 sumed 
 nts at 
 
 This matter of the buildings and improvements at the posts 
 is made one of very great importance by tlie Company; as is 
 evident from the statement made by Mr. Mactavish, that one 
 hundred and fifty men were continuously employed at the one 
 post of Vancouver alone, iji the improvement of that place, 
 for seven years, from 1831> to 1M40, when the joint occupation 
 of the two Governments ceased. 
 
 In relation to the buildings, improvements, and other mat- 
 ters, it was therefore extremely important that the books of the 
 Company, especially the books setting forth the transactions 
 of each post, should be produced by the Company. 
 
 The production of these books should, it is to be presumed, 
 bo the very thing the Company should desire. Thus, the Com- 
 pany would have been able to approximate at least to the 
 amount expended by them for the buildings and improvements 
 at the different posts. Mr. Mactavish, says: 
 
 "During my connection with the place (Vancouver), then, I 
 suppose the outlay could be found in the local books of the 
 place, that is to say, the wages and material used for the build- 
 ings." (Ans. to Int. 39, U. S. Miscel. Ev., p. 52.) lie fur- 
 ther says, he thinks he has seen these books of wages paid to 
 servants for some of the years he was at Vancouver, and that 
 these books were in the Company's office at Victoria, [lb. p. 
 53.) lie further says, it was the custom carefully to preserve 
 all the books of the Company. Further, he states, that the 
 Vancouver books were taken to A'^ictoria. [lb. p. 54. 
 
 Yet, these books, so important to the Company, have never 
 been produced. One might have supposed that the Company 
 would make haste to produce their books, as showing, by 
 reference to them, facts, fixing beyond dispute the amount of 
 expenditure on the different posts. But though the Company 
 had it entirely in their power to produce these books, and thus 
 ad(i to the strength of their case; yet, strange to say, they 
 have not thought proper to do so, presenting at last only 
 abstracts of secondary matters. 
 
 Not only did the Company fail to produce their books vol- 
 untarily, but even under the pressure of an express demand 
 
 l« 
 
02 
 
 h il 
 
 for their production by tlio United States, the Company have 
 not produced the books. 
 
 In reply to Mr. W. Carey Johnson, Dr. 'rolmie, represent- 
 ing the Company, says, under date of" April 15, 1(SG7: 
 
 "I have to acknowled„'e receipt of your letter, chited N'ic- 
 toria, April 11, IcSGT, applying, as you therein state, by diiec- 
 tior» of Mr. Cushing, for access to books, and information on 
 various points, far beyond "what, under my only instructions 
 on the subject from Mr. Day, of which you have received a 
 copy, I conceive myself authorized to furnish. I regret, there- 
 fore, that I cannot comply with your re(|ucst." 
 U. S. Miscellaneous Ev., p. 201. 
 
 That there were books shoAvirig the expenditures for im- 
 provements at the various posts, is evident from the evidence 
 of Mr. Mactavish previously cited. 
 
 That these books were preserved, and in poss' sion of the 
 Company, also appears from Mr. Mactavish's testi niy. 
 
 Such being the fact, why Avcre these books not produced, 
 on the demand of the United States? 
 
 It was the interest of the Company to produce these books 
 in the first instance, if they corroborated the statements of the 
 memorial. But it became especially incumbent on tin Com- 
 pany to produce the books, after the demand of the United 
 States, because failure to produce them could not but preju- 
 dice the Company's claim. 
 
 Take the case of an individual who is called upon to produce 
 his books, where it is known tliat entries are made throwing 
 light upon the matter of litigation ; and suppose he declines 
 to produce his books : — what inference is drawn ? The natural 
 inference is, that his books will benefit his adversary more 
 than himself. 
 
 The same inference must bo made against the Company in 
 this case. The Company, beyond all dispute, have possession 
 of the books. The books would show the expenditures made 
 on improvements. This information is one of the very matters 
 in controversy. Yet the Company, instead of producing the 
 books which would furnish us with facts, produces Mr. IMao- 
 
books 
 
 of tho 
 
 Com- 
 
 uiteil 
 
 )V0Jll- 
 
 xluco 
 
 oWlIli' 
 
 liny 111 
 
 icssiou 
 
 made 
 
 lattevs 
 
 >; the 
 
 tuvisli, or Mr. Toliiiic, or Sir Jatnos D()U<^las, to testify from 
 mcmorv, witliout vouchors, as to' tlio cost ami value of tlitj 
 structures and other iinprovemcnts, including niills, behuig- 
 in^ to the CoMipany. 
 
 Tlic failure of the Oom[)any to produce their books is a fact 
 of great significance, involving all possible conclusions against 
 the Com|)any. 
 
 Indeed, by the statutes of the United States, non-produc- 
 tion of books by a party plaintiff subjects him to non-suit. 
 (Act of Sept. 24, 178!>, U. S. Laws, vol. 1, p. 82.) (See lasigi 
 I'. IJroAvn, 1 Curtis' (J. (J., 4(>1.) And e(|uity would coinpcd 
 production under similar penalty. (1 Greenf. Ev., by Jtedfield, 
 555-9, ajid «t'7.) 
 
 At various stages of the evidence, as well that of the 
 Hudson's Pay Company as that of the Unitc<l States, the (Jov- 
 ernment, it appears, made frequent efforts to obtain access to 
 the books of the Company. 
 
 We sought for them at Montreal ; and there we were referred 
 to London. 
 
 The claimant Company had repeatedly and urgently notified 
 the United States of its earnest desire to take evidence in Lon- 
 don : in consequence of which the Government, at considerable 
 expense, employed special counsel to attend to that object ; 
 but, when the time for action arrived, the Company backed 
 out, and trave notice that it did not intend to take anv te^ti- 
 mony in Great Britain. (U. S. ]Misc. Ev., \)\). 1-11.) 
 
 Hereupon, the United States took upon itself the disadvant- 
 age of itself calling on the Hudson's J3ay Company, and also 
 on the Puget's Sound Company, at the seat of their power, in 
 London, for the information which the ollieers of the Company 
 in America had refused or dec ined to furnish : thus ct)nvert- 
 ing the head oHicers of theComj anies themselves into witnesses 
 of the United States. 
 
 To be sure, the Government found it no easy task to discover 
 the liuhttat, or even the personality, of either Company. 
 
 We put upon the scent of the Companies one of the most 
 sagacious attorneys accessible to us, and he pursued the faint 
 traces of them, which he could discover, with eouuuendable 
 
 
94 
 
 > • fiS 
 
 
 \ 
 
 zeal and persistence, and all the keenness of perception of an 
 expert in such matters. 
 
 It appeared, at lengtli, tliat, in the task of hunting down 
 either of these Companies, the representative of the United 
 States was engaged in an expedition not less artiuous than 
 that of tlie adventurous Nova Scotian, who, in the innocence 
 of his heart, supposed that somewhere in England he might 
 discover the Mother Country. 
 
 jMr. Ilalvburton did at length detect tho Mother Country, 
 in the person of an old gentleman by the name of Stephens, 
 with a quill over his ear; and, in like manner, Mr. Clarence 
 Seward unearthed the Hudson's Bay Company, in the person 
 of another old gentleman with a quill over his ear, of the name 
 of Roberts, purporting to be the accountant ot" the Hudson's 
 Bay Company. 
 
 But Mr. Clarence Seward was not equally successful in 
 finding the Puget's Sound Agricultural Company : buing put 
 off. as to that Company, by reference to another old gentle- 
 man, with a quill over his ear, of the name of Armit ; and 
 this person, after all, seemed to be ''Ut a counterfeit present- 
 ment of the Puget's Sound Company, seeing that he was in 
 fact registrar of shares of the Hudson's Bay Company. We 
 submit, that here was a case of superfetation at least, if not of 
 false personation. 
 
 However this may be, the United States could get neither 
 from the accountant nor the registrar any satisfaction touch- 
 ing the facts under iuvestiijation. 
 
 If Mr. Roberts and Mr. Armit are to be believed, the Hud- 
 son's ]Jay Company, with its venerable age of two full cen- 
 turies, (the Puget's Sound Company docs not count, that being 
 still en ventre sa mere,) lives in torpid ignorance and super- 
 annuated unconsciousness of its own affairs, like a fossilized 
 image of incorporations : receiving cargoes from America 
 and transmitting cargoes from England; paying bills of ex- 
 change or remitting specie; and placidly receiving, or failing 
 to receive, dividends, at such times and of such amount as Mr. 
 Somebody, hidden somewhere in the great liyperborcan regions 
 of this continent, between the Atlantic and Pacific oceans. 
 
n of an 
 
 ^ down 
 United 
 IS tlian 
 tioccnco 
 e might 
 
 ountrv, 
 eplieiis, 
 /larcnco 
 ! person 
 bo niuno 
 [udson's 
 
 !ssful in 
 L'ing put 
 gentle- 
 lit ; and 
 present- 
 was in 
 We 
 f not of 
 
 neither 
 touch- 
 
 ic 
 
 Ilud- 
 
 fiill cen- 
 ut being 
 d super- 
 
 ssilized 
 i\nierica 
 of ex- 
 failing 
 
 ; as Mr. 
 
 ro<xioMS 
 
 oceans, 
 
 :,1' 
 
 05 
 
 mny condescend to dole out to the confiding stockholders in 
 London. 
 
 But of tlic necounts of the Company, the official accoujitant 
 himself knows nothing; that is a brunch of useful knowledge 
 not open to earjicst inquirers after trutli at tlie headquarters 
 and coroorato centre of the Hudson's Bay Company. 
 
 Who, then, docs possess this branch of valuable knowledge? 
 
 AVhy, forsooth. Dr. Tolmie, at Victoria, out of whom the 
 United States liad already labored in vain to extort the de- 
 sired information there; and Mr. jNIactavish, at Montreal, 
 who had in like manner disav^j-^'ed all knowledge on the sub- 
 ject, (U. S. ]Misc. Ev., p. ]").) 
 
 In this dileinina, the Government fell back once more on 
 Dr. Tolmie and Mr. Mactavish. 
 
 As to Dr. Tolmie, he was not ready or willing to say any- 
 thing; but, after undergoing severe pressure, he at length 
 did give to us a quantity of figures, of no importance; but 
 declined to give the important information required by the 
 United States. (U. S. Misc. Ev., p. 180.) 
 
 We then applied the screws of investigation to Mr. Macta- 
 vish a second time, and diligently labored with him night and 
 day, in season and out of season, in the pursuit of knowledge 
 under difficulties. From him we obtained most ample and sat- 
 isfactory proof, that he did not possess any definite knowledge 
 in regard to the material facts, which had constituted his oc- 
 cupatio!! as book-keeper, clerk, accountant, chief trader, and 
 represenfative agent, of the Hudson's ]Jay Company, from the 
 anno Domini of 1833 to that of 1867 inclusive, the date of 
 his second deposition at Washington ; although, when deposing 
 previously at Montreal, he knew everything with the positive- 
 ness of inspiration, (not divine, but of the Company's counsel.) 
 
 And, so it happened, that the long examination of Mr. Mac- 
 tavish at Washington, consisting of nearly one thousand ques- 
 tions and answers, occupying one hundred and forty-two pages 
 of reasonably-compact octavo print, wound up with the de- 
 plorable catastrophe, the result of the long-continued appli- 
 cation of the ^J6'//te forte et dare to a dumb witness, of the 
 
I I hE 
 
 96 
 
 following expiring gasp, which is the last wc hoar of Mr. 
 Mactavish : 
 
 ''^ Jilt. ^^f}2. Will you please produce here, for examination 
 by the United States or their counsel, all accounts, iiccount- 
 books, and letter-books of th.e Hudson's IJay C()ni[)any wliich 
 were kept at the various posts of that Company, south of the 
 49th parallel of uorth latitude, during their occupation by 
 the Company, together with the regulations under wliich their 
 books were kept, and the regular forms of contracts with the 
 Company's servants? 
 
 '•^ A. I cannot say wliethcr I will prodneo them or not." 
 
 Such is the melancholy Jinale of all the painstaking and 
 praiseworthy endeavors of the United States to extort from 
 the Hudson's T>ay Company, its olliccrs — great and small — 
 whether at the centre or anywhere between there and the cir- 
 cumference of their power — a single fact concerning its ex- 
 penditures on its various posts, on account of which, by means 
 of conjectures, suppositions, and opinions, it presumes to de- 
 mand millions of compensation from the United States. 
 
 Wc might, perhaps, have filed a bill of discovery in aid of 
 the ordinary course of inquiry by deposition ; but we shrank 
 from the waste of time and money involved in such a line of 
 action. 
 
 The Government now stands on its rights, legal and equita- 
 ble, and says to the honorable the Commissioners : These chum- 
 ants make out their case by being their own Avitnesses: they 
 have filled the record with their opinions and conjectures in 
 the place of facts; they obstinately refuse to communicate 
 the facts; they deliberately suppress the information which it 
 most imports the Commissioners to have; and you, the Com- 
 missioners, will judge these parties as tliey deserve to bo 
 judged: that is to say, you will, wo trust, reject their shame- 
 less claims, and pay no heed to the secondary and incompe- 
 tent evidence in their support placed before you, whether by 
 the Hudson's Bay Compan3^ or by its illegitimate and ficti- 
 tious offspring, the Piiget's Sound Agricultural Company. 
 
 IV. Testimony of Mr. Gihhs. 
 
 We are surprised at the violence of the attack of the Com- 
 pany's counsel on Mr. (libbs. 
 
97 
 
 of Mr. 
 
 ination 
 ccoiuit- 
 ' which 
 I of tlie 
 ;ion by 
 i\\ their 
 fitU the 
 
 tr 
 
 nsj and 
 ivt from 
 small — 
 the cir- 
 T its cx- 
 y' means 
 3S to ile- 
 s. 
 
 n aid of 
 t shrank 
 I line of 
 
 cquita- 
 chiini- 
 : they 
 
 uros in 
 
 unicate 
 which it 
 
 c Com- 
 
 to be 
 
 shame- 
 
 compc- 
 
 thcr by 
 I ficti- 
 
 iny. 
 
 u 
 
 This testimony is not, as we conceive, so important as to 
 require sucli attack, because there is no material fact testified 
 by him which has not been proven by other witnesses. If 
 his testimony were struck out entirely, it would not alter the 
 result in the slightest degree. Mr. Gibbs has only stated 
 facts testified by others. It sometimes happens in a case, 
 that it turns entirely upon the evidence of a single witness. 
 Then it becomes essential for the party, against whom this 
 
 ic Com- 
 
 cvidence weighs, to destroy the witness, it possible, ilence, 
 in such case, Ave expect counsel to bring every possible force 
 to bear to accomplish tliis purpose. But in the instance of 
 Mr. Gibbs no such reason existed for a desperate assault upon 
 him. 
 
 The points attempted to be made against him are, wo think, 
 most signal failures. 
 
 The first exception taken to Mr. Gibbs goes back to 1850, 
 some seventeen vears before his testimony was ffiven, and 
 refers to his oilicial action as deputy collector of Astoria. It 
 appears that under date of March 10, 1850, Mr. Gibbs, as 
 deputy collector of Astoria, addressed a communication to P. 
 G. Ogdon, Esq., in which is found the following passage: 
 
 "In relation to the schooner 'Prince of Wales,' I am also 
 obliged to inform you, that slu must forthwith obtain a permit 
 from this office for the navigation of the river, and prove her 
 character and ownership according to law, and that hereafter 
 siio cannot be employed in any other than the actual service 
 of the Company, as (Icfined in the second article of the treaty 
 of Oregon, nor be allowed to navigate the Willamette river. 
 The instructions to tliis office and the requirements of law aro 
 on these subjects definite." 
 
 The first observation we would make on this extract is, that 
 the statement, "the instructions to this office '''■ '''' arc on 
 these subjects definite," must be taken as true, until counter- 
 evidence is introduced. No such counter-evidence having been 
 introduced, we are bound to take for granted, that such in- 
 structions were given. Such being the case, whether tho 
 instructions were right or wrong, the responsibility for thctn 
 does not rest on Mr. Gibbs, but on the Treasury Department 
 
 of the United States. 
 13 
 
98 
 
 mm 
 
 ■ lini. 
 
 \ >!:.;|.i'f ^ 
 
 : mi 
 
 But, independently of the protection these instructions af- 
 ford Mr. Gibbs, on reference to the comniuniciition it is not 
 perceived tliat an}^ serious objectiou can be taken to it. If wo 
 "were hiying down instructions upon the subject now, tlic only 
 point, (upon which there would probably be any difference of 
 opinion) is, whether the Company's vessels could be employed 
 in any other than the actual service of the Company. Upon 
 all other points, the requisitions made by Mr. Gibbs seem en- 
 tirely proper. As to the navigation of the Willamette river 
 by the Company, there is certainly the gravest reasons to 
 doubt whether it is conceded by the treaty. Our construction 
 would be that it is not. 
 
 Upon this subject, ]SIr. Gibbs says : 
 
 "As regards the Prince of Wales, I have to say, * * I 
 acted in accordance with the requirements of the revenue laws, 
 and under the adviee of Mr. Ilolbrook, the United States dis- 
 trict attorney." (U. S. Ev., Pt. 2, p. 419, Ans. to Int. 48.) 
 
 An attempt is made to prejudice this proceeding on the 
 part of Mr. Gibbs, by supposing that he had an interest in a 
 rival steamer. But it does not appear from the evidence 
 that he had more than a temporary and contingent interest in 
 such vessel, from which he promptly withdrew. 
 
 It is clear there was nothing in the magnitude or certainty 
 of this interest calculated to improperly influence the official 
 action of Mr. Gibbs. 
 
 In considering this point, it must be remembered, injustice 
 to Mr. Gibbs, that he was acting as deputy collector, and, in 
 law, the action had by him was the action of his principal, the 
 collector-in-chief, General Adair. In the absence of any evi- 
 dence to the contrary, the presumption of law is, that Mr. 
 Gibbs merely obeyed the orders of his immediate superior, 
 General Adair, under whom he acted. It does not appear that 
 General Adair, in any degree, dissented from the letter of 
 his subordinate. 
 
 When we consider, further, that he acted under the advice 
 of the district attorney, Mr. Ilolbrook, the person specially 
 ap])ointcd by the law for that purpose, we cannot see that any 
 responsibility can attach to Mr. Gibbs in the premises. 
 
09 
 
 ons af- 
 
 is not 
 
 If wc 
 
 ic only 
 
 enco of 
 
 iployed 
 
 Upon 
 
 3ein en- 
 
 te river 
 
 sons to 
 
 ;ructiou 
 
 ue laws, 
 ites (lis- 
 ;. 48.) 
 
 ; on the 
 
 'cst in a 
 
 fevidcnco 
 
 crest in 
 
 •tainty 
 official 
 
 justice 
 and, in 
 )al, the 
 ny evi- 
 lat Mr. 
 ipcrior, 
 ar that 
 ;ttcr of 
 
 advice 
 )ccially 
 lat any 
 
 It is not fair to Mr. Gibbs to judp;o him exclusivGly by his 
 action in rofcrcnco to tho Prince of Wales. His entire con- 
 duct should be considered as deputy collector, in regard to tho 
 Company. jNIr. Gibbs states: "I went beyond the law in af- 
 fonling faculties, which nothing but the necessities of tho 
 country would have justified." (U. S. Ev., Pt. 2, p. 419.) 
 This statement is uncontradicted; indeed, it is confirmed by 
 jNIr. Ogden's letter of March 2"), 18G0, to Mr. Gibbs, in which 
 he says: "Under these peculiar circumstances, I trust the 
 collector will extend to us the same privilcfjc he Jias alreaJi/ 
 done with our ships, when, I trust, all the different forms, as 
 required by the United States Government, will be duly per- 
 formed ; and we feel no wish to cause any derangement in your 
 official rules and regulations which we can possibly avoid." 
 (Company's Ev., p. 399.) From this letter, it is clearly in- 
 ferable that Mr. Gibbs had gone out to the very end of the 
 law to extend "privilege" to the Company. 
 
 Tlie truth is, it was no easy matter to satisfy the Company. 
 They found it difTicult to play a subordinate part in a country, 
 where, in effect, they had exercised sovereign powers. 
 
 AVe call attention to the fact, as appears from the above- 
 cited letter of Mr. Ogdcn, that the Compnny protested against 
 the payment of duties on imports. It requires no argument 
 to show that, so far as the goods imported by the Company 
 were consumed or sold in the country, they were liable to 
 duties. The protest of tho Company on this point exhibits 
 the extravagance of their pretensions. It is much to the credit 
 of i\Ir. Gibbs's obliging disposition as an officer that, under 
 the circumstances, he was able to discharge his duties in such 
 an acceptable manner as to give the Company such very slight 
 ground of complaint. 
 
 The assumption in tho argument, that because of the letter 
 of the Secretary of State of the United States, some two years 
 afterwards, under date of April 8, 1852, ]Mr. Gibbs became 
 hostile to the Company, appears to be entirely gratuitous. It 
 is true the Secretary does speak of " the collector misappre- 
 hending the law." JiUt ^Nfr. Gibbs was not the collector. Tho 
 remark did not apply to him. And there was nothing in the 
 
100 
 
 1 
 
 ^Ki : 
 
 1 
 
 j^B -1 
 
 
 
 
 
 ;fw 
 
 
 «i 
 
 |Hpi 
 
 wHb I 
 
 '■E^^D' '' 
 
 iVi 
 
 " ^; 
 
 remark to excite mortification, even on tlic part of the collector, 
 the person referred to by the Secretary of State. A collector 
 may possess all possible i .telligence and every virtue, and yet 
 misapprehend the law in a new case, under such a complicated 
 system as the custom-house regulations of the United States. 
 To suppose, then, that Mr. Gibbs became hostile to the Com- 
 pany from this trivial incident, is a violent and unreasonable 
 supposition, — a supposition which would not hold good in re- 
 gard to men generally, and is peculiarly unjustifiable in rcfi. - 
 ence to Mr. Gibbs, whose amiability of character, generosity 
 of nature, and freedom from the prejudice of narrow minds, 
 are signally and honorably conspicuous. 
 
 The next complaint against Mr. Gibbs is, that he became 
 clerk of the American Commissioner in this case. The argu- 
 ment of the Company seems to insinuate that iNIr. Gibbs, ac- 
 tuated by a settled hostility to the Company, obtained the 
 ^situation of clerk, for the mere purpose of pursuing the Com- 
 pany with his hostility. Such a suggestion as this would be 
 more appropriate in a sensational romance than in real life. 
 In the case of Mr. Gibbs it is entirely out of place, and does 
 more credit to the imagination of the learned counsel who 
 prepared the argument, than to hisothjr intellectual faculties. 
 
 The naked fact of the case in this connection, stripped of 
 all rhetorical embellishment, is, that Mr. Gibbs, though one of 
 the clerks of the Commissioner, has taken some interest in 
 ascertaining what persons could give evidence in the case, and 
 what their evidence was, and giving this information to the 
 counsel for the United States. 
 
 It is not perceived, that there is anything improper in this 
 conduct on the part of Mr. Gibbs. lie was clerk to the Com- 
 missioner on the part of the United States, and another gentle- 
 man was clerk to the Commissioner on the part of Great Britain. 
 Each clerk had an equal right to inspection of the records, 
 and their proper verification. There is no pretence that Mr. 
 Gibbs has not discharged all the business acts required of him 
 as clerk. Upon this point no complaint is made. The objec- 
 tion is that Mr. Gibbs has gone outside of his sphere of ofl^i- 
 cial action, and aided in bringing evidence into the case. Mr. 
 
101 
 
 in this 
 |e Com- 
 
 ;cntle- 
 Iritain. 
 
 ;cov(ls, 
 I at Mr. 
 lot' him 
 
 objcG- 
 
 •f oin- 
 
 Mr. 
 
 
 Gibbs's offence is in aiding to produce evidence. It is difficult 
 to see what is wrong in such a procedure. 
 
 The object of the Cominissio i was to receive evidence on the 
 subject of the Company's claims. Any citizen of the United 
 States, feeling a just interest in his country, if he had been 
 aware of the existence of competent evidence bearing on the 
 subject-mutter of investigation before this Commission, would 
 most unquestionably have been authorized, without being sub- 
 ject to the charge of ofliciousness, to communicate to the proper 
 representative of the United States the information in his 
 power. Indeed, his silence on the subject would not be the 
 full discharge of his civic duties. jNIr. Gibbs, by becoming 
 one of the clerks of this Commission, did not cease to be a citi- 
 zen of the Ignited States, and did not relieve himself from the 
 civic obliijations arising' out of that relation. He was as free 
 to take tlie interest he did in the case as any other citizen. 
 
 It is not pretended that he produced interested Avitnesses or 
 false evidence. The Company, if they were confident of the 
 merit of their claim, should desire the fullest possible investi- 
 gation, and, instead of complaining of ]Mr. Gibbs for throw- 
 ing light upon their case, should rather have been grateful to 
 him. Parties who have meritorious claims do not object to 
 the fullest consideration of them. They court scrutiny. It 
 is only those who have a bad claim, who fly from the light 
 and avoid investigation. 
 
 It must be remembered, in justice to Mr. Gibbs, that ho 
 was peculiarly situated in this matter. Jfe had lived in Wash- 
 ington Territory ; he had had intimate acquaintance with the 
 operations of the Company in that Territory; he had seen 
 many of tiieir posts; he had studied the country as a man of 
 science; he knew a great many people who had been living in 
 Washington Territory. Tn short, he possessed information in 
 regard to the Company, and in regard to witnesses, superior 
 to, perhaps, aiiy one in this part of the United States. Under 
 these circumstances, what was Mr. Gibbs to do? The Com- 
 pany were pressing an exorbitant claim before the Commission, 
 which he, in common with many otiier persons of intelligence, 
 uii^'iit well consider in the last dcfiree unconscionable. If he 
 
102 
 
 & 
 
 (lid nothing, ho committed what he supposed was an injustice 
 to tlic Uiiiti'd States. Tiio path of dut}' scenicd to liini to bo 
 ])hiin It was to inform the counsel for the United States of 
 the names of such persons as he knew were proper to be wit- 
 nesses in the case. 
 
 Objection is furtlier made that Mr. Gibbs prepared some of 
 of his own interrotratories. But when we consider the fact of 
 an intelligent witness, with abundance of leisure, and counsel 
 pressed with business engiigcments, we can readily understand 
 how this may, very properly, be done, for the mere purpose 
 of expediting matters. Every proper examination of witness- 
 es, produced by a party, pi'csupposes some knowledge of the 
 points to which the witness is to speak, to bo communicated 
 to counsel. This is usually done by previous conversation 
 of the counsel with the witness, and n^ :,ig the substarico 
 of his statement. Where the witness is intelli<xent, and 
 compr(;hends clearly the matter on which he is to be ex- 
 amined, there can be no objection to his preparing himself 
 the statement of facts with which he is familiar. This prepa- 
 ration may as well take the form of interrogatories as not. 
 As a matter of convenience, to save time, Mr. Gibbs, doubtless, 
 drew up the particular interrogatories referred to. If there 
 is nothing improper in the interrogatories, it matters but little 
 by whom they are prepared. And no exception is taken to tho 
 form of the interrogatories in this instance. It seems to us, 
 therefore, that the fact that they were prepared by Mr. Gibbs 
 iS a circumstance of no importance. 
 
 Mr. Mactavish states in his examination, (U. S. Miscella- 
 neous Ev., p. GO,) that the counsel for the Company gave him 
 questions, and that he then wrote oil his answers, returning 
 both questions and answers to the counsel, and further states, 
 that he may have consulted with his counsel about his answers. 
 He further testifies as follows : 
 
 " Int. 154. Did you not, at some time after your answers were 
 sent to Judge Day, alter them in consultation Avitli him, cither 
 by leaving out certain parts of them, or by adding to them ? 
 
 " Ans. I may have done so, but I have no recollection of it 
 now." (U. S. Ev. Mis., p. 70.) 
 
108 
 
 ijustico 
 
 111 to bo 
 
 tatcs of 
 
 be "wit- 
 
 snine of 
 ! fact of 
 counsel 
 crstaiid 
 purpose 
 witiiess- 
 13 of the 
 iiiicated 
 ersatiou 
 ibstancc 
 iiit, and 
 be cx- 
 biuiself 
 s pvepa- 
 as not. 
 )ubtiess, 
 f thero 
 ut little 
 n to the 
 s to us, 
 . Gibbs 
 
 iscella- 
 lave him 
 [turning 
 states, 
 Lnswers. 
 
 }rs were 
 1, cither 
 
 I em ? 
 
 )n of it 
 
 This mode of preparing a witness for examination would 
 
 fr 
 
 seem to estop the Company irom complaining oi a witness 
 
 )f 
 
 more 
 
 ly prop 
 
 )ariiifr his own intorrotratories. 
 
 Complaint is made, in connoctioii with Mr. Gibbs, that the 
 manuscript evidence has not been correctly printed. In refer- 
 ence to L. Brooke's evidence, it appears that the words " as 
 to" are printed, though they do not exist in the manuscript. 
 
 Tl 
 
 ns IS evK 
 
 Icntly 
 
 I mere error or tlie printer, and tloes not 
 
 I d( 
 
 alter the sense in the sli^jrhtest decree. 
 
 The argument continues: "And, on the same page, $1 per 
 acre is printed, instead of $100, which it ought to be." (Argu- 
 ment for Co., p. 167.) What shows conclusively that this was 
 a mere error of the printer, overlooked in the correction of tho 
 proof sheets, is the fact, that the statement made is in refer- 
 ence to ton acres of land purchased by General Ingalls in Van- 
 couver, which statement is printed correctly inGeneral Ingalls' 
 evidence, (Answer to Int. 20, U. S. Ev., Pt. 2, p. 7,) as follows: 
 
 "In 1800 I purchased some ten acres of land in Vancouver, 
 at what I considered the most eligible site on the river, ' A' 
 $1,000, and during the present year have sold it for tho 
 same." That is to say, the context indicated the error of 
 the printed price per acre, and no misapprehension was occa- 
 sioned by this error. 
 
 Such is the slender foundation upon which this complaint 
 rests. From this we may judge of the spirit with which Mr. 
 Gibbs has been pursued in this case. 
 
 The effort is evidently to punish him for being instrumental 
 in the production of important witnesses. His oifonce is not 
 so much, we imagine, i^' his own testimony, as in the testimony 
 brought into the case on his information. 
 
 We regret that the Company have thought it expedient to 
 Avatio such unrelontinij; war against Mr. Gibbs. llis si<ii;nal 
 probity is too well known to require any further defence at 
 our hands. His gifted intellect, his scholarly attainments, his 
 devotion to scientific pursuits, his generosity of character, 
 command for him the respect and esteem of all who know him.* 
 
 *Iu the >>upiilL'uifUt and Ajijieudix I'ur tho UniieJ tJlales, it will bu shown 
 under what cirouuistancod and nnpul^es of duty he acted, so as eompletely to 
 vindicate him from all iuiputatiou in the premises. 
 
104 
 
 V. Motion of the Comjmni/ hi amendment of ita Memorial. 
 
 Riiicc the filln;; of the inoiiioriiil, the Compiiiiy liavc moved 
 to amoinl, so as to increase tiieauiount claimed by them in the 
 sum of.S4r)9,900. 
 
 The original amount claimed in the memorial is !?3,8:i2,0o() 
 67. The total amount now claimed under the amendment is, 
 $4,281,030. Of this increased amount of ,^4.")'.), 000, the sum 
 of 8418, GOO (!)G is set down for the land at Vancouver. 
 
 The reason of the proposed increase is stated in the motion 
 to amend to be, "because it appears by the evidence of re- 
 cord, that the lands claimed by the Hudson's Bay Company 
 at each of the posts of A^ancouver ;).nd Colvile, greatly ex- 
 ceed in value the respective amounts stated and claimed for 
 them in the memorial." (Argumei.t for Company, p. 1.").) 
 
 The motion comes in long after the close of the evidence 
 on both sides. We deny the right of the Company to file 
 such a motion at such a time. We protest against it as too 
 late. AVe insist that, if received, it shall be regarded as re- 
 opening the whole case for additional evidence. The United 
 States can and will, \i permitted, produce much and conclusive 
 additional evidence to the falsity of the new claims of the 
 Company. 
 
 It is generally presumed that a party states his own claim 
 with sullicient liberality. At any rate, such is the ordinary 
 experience in business transactions. The bias of interest is 
 generally sufficiently operative to insure this result. 
 
 Where, therefore, a party, after ample time, as in this case, 
 and elaborate preparation, fixes his own claim, a subsequent 
 departure from his own estimate is calculated at least to 
 awaken surprise; ordinarily it would tend to excite a certain 
 degree of prejudice against the claim, as being vague and 
 speculative. In the case of the Company, where, by their 
 elaborate system of accounts, and the able officials employed 
 by them, the greatest possible precision and accuracy in all 
 business transactions may readily be arrived at, it seems the 
 more inexcusable that, in the progress of the case, there should 
 
lO.-) 
 
 \orial. 
 
 mo veil 
 ii in the 
 
 mcnt is, 
 ;he sum 
 
 ! motion 
 e of ro- 
 ompany 
 atly ex- 
 itncd for 
 1.3.) 
 
 2viilonco 
 ' to file 
 it as too 
 0(1 as re- 
 united 
 nclusive 
 of the 
 
 n claim 
 rdinary 
 crest is 
 
 kis case, 
 
 [sequent 
 
 least to 
 
 certain 
 
 Hue and 
 
 |y their 
 
 iployed 
 
 in all 
 
 mis the 
 
 should 
 
 be a necessity of opening the amount of the claim and lar^^ely 
 
 incrcdsniu it. 
 
 Th 
 
 if: 
 
 iblc 
 
 th 
 
 duccd 
 
 d., 
 
 lie uiitavoraoie impression tlius i)ro(lucca is aeei)ene(ij 
 when we consider that this ])roposed increase is almost entirely 
 sot down to a single item, — the land at one post, Vancouver. 
 The pro[)osed increase in this one item is ^41.3,000 GO. If 
 the proposed increase had been spread over numerous items 
 of the claim, it would not have been so striking. But it is 
 applied in chief to the single item of land at Vancouver. One 
 would have supposed that the value of the land at Vancouver 
 might have been approximated in the j)reparatory estimate 
 nearer than .^41.3,G(jG 00. It appears from Mr. Mactavish's 
 evidence that he proposed a higher valuation on Vancouver 
 than was placed on it in the memorial. But this higlior esti- 
 mate was rejected on doubtless the most mature consideration. 
 The subsequent motion to amend, therefore, from considera- 
 tion of this fact, creates the more astonishment and suspicion. 
 
 The increased estimate is brought about by the fact that 
 the Company's witnesses value the lands at Vancouver and 
 Colvile at a far higher rate than the Company did. 
 
 The natural effect of the witnesses assigning a far higher 
 value on lands at Vancouver and Colvile than the Company 
 did, is, that such higher valuation excites suspicion as to the 
 value of the evidence. It gives the impression that the wit- 
 nesses are extravagant in their estimates. In short, it im- 
 pairs our confidence in the reliability of the witnesses. 
 
 Either the original estimate of the Company or the subse- 
 quent estimate of the witnesses is erroneous. lioth cannot bo 
 correct. And the difference is so large, $413,000 00, in regard 
 to the one item of land at a single post, that this error can- 
 not be considered as immaterial. It is too great and important 
 an error to be so treated. The error is vital. It reflects on 
 the Company, — on the witnesses. We might well think the 
 Company are nearer the truth than the witnesses, because 
 the ordinary principles operative on human nature arc almost 
 certain to cause a party to value his claim high enough ; and 
 we must therefore suppose that the Company did sq in this 
 
 case. 
 
 14 
 
lOfi 
 
 • 'in 
 
 
 :m 
 
 
 \ 
 
 %■■., 
 
 
 
 t 
 
 ^■if 
 
 <i ' , 
 
 1 
 
 >• m' 
 
 
 
 A'.- > 
 
 i'v 
 
 
 it 
 
 '] . 
 
 
 i- 
 
 Si'*f ■' 
 
 f 
 f~ ' 
 
 ^fi?1 
 
 
 
 |i 
 
 j^^ll 
 
 ■' 
 
 nniiw 
 
 i-i 
 
 ^pB 
 
 
 
 H 
 
 This extraordinary spectacle of the witnesses in a case going 
 beyond the principal in fixing the amount of the recovery, 
 fives great force to tlic objections to the principal evidence for 
 Jie Company, as coming from interested witnesses, — olficers 
 and employes of the Company. And we arc forcibly admon- 
 ished of the necessity of scrutinizing the evidence on behalf 
 of the Company with the most suspicious caution. 
 
 VI. The Compaiv/s oivn estimation of its value. 
 
 The Companies have themselves, at various times, ra^ i and 
 fixed the value of their various claims, at a sum, wnich re- 
 flects most disparagingly on their present pretensions. 
 
 Thus, in 1860, they offered, through their Government, to 
 accept $500,000 in full satisfaction of all their claims, in- 
 cluding the navigation of the Columbia river. 
 
 But this offer is not the only occasion in which the Compa- 
 nies have exhibited their own estimate of the value of their 
 claims. They have done it at other times, and in other forms, 
 in memorable contrast Avith the attitude in which they now 
 stand. 
 
 Thus, in 1852, Sir George Simpson, speaking for the Com- 
 panies, offers to dispose of all their rights for $1,000,000, 
 although he pretends that this is less than half their value. 
 He does not profess that it is less than onc-Jifth of their value. 
 (U. S. Misc. Ev., p. 280.) 
 
 Lord Lyons to Gen. Cass, December 10th, 1860, United 
 States Evidence, Mi?nellaneous, p. 284. 
 
 In this despatch. Lord Lyons says: 
 
 "I am accordingly instructed to state to you, sir, that, if 
 the United States Government will agree to pay to the Hud- 
 son's Bay andPuget's Sound Companies a sum of five hundred 
 thousand dollars, ($500,000,) in extinction of all their claims 
 against the United States, under the treaty of June 15, 1846, 
 her majesty's Government will be prepared to accept that 
 amount in behalf of the two Companies, and to release the 
 United States Government from all further liability, so far as 
 regards their engagements to Great Britain, under the third 
 and fourth articles of that treaty, in behalf of the Hudson's 
 
107 
 
 3 going 
 jovcry, 
 nco for 
 oiricers 
 idinon- 
 behalf 
 
 ^ i and 
 lich re- 
 lent, to 
 ms, in- 
 
 Compa- 
 3f their 
 [• forms, 
 ley now 
 
 le Com- 
 00,000, 
 value. 
 r value. 
 
 United 
 
 [that, if 
 
 e Ilud- 
 
 lundred 
 
 claims 
 
 1846, 
 
 )t that 
 
 ise the 
 
 far as 
 
 third 
 
 idsoa's 
 
 Bay and Pugot's Sound Companies in Oregon, whether on ac- 
 count of land and buildings, or on account of privileges men 
 tionod in the aforesaid articles." 
 
 It will be noted that this proposition comes direct from the 
 
 British Government to the Government of the United States. 
 
 It shows the estimate the British Government placed on the 
 
 ;li 
 
 th( 
 
 claims of the Companies. While it is conclusive upon ine 
 British Government, the party to the treaty of 184G, it is also 
 conclusive upon the Companies; because the Companies, hav- 
 ing placed their claims in the care of the British Government, 
 were bound by the action of such Government. Besides, it is 
 not to be supposed that the British Government would have 
 volunteered an estimate of the Companies claims, the Govern- 
 ment must necessarily have received this estimate from the 
 Com panics. 
 
 We submit, that this proposition of the British Government, 
 to receive $500,000 in full satisfaction of all the claims of 
 both Companies, is conclusive upon the Companies, and is a 
 moral estoppel against their claiming a larger sum now 
 The companies may recover less than $500,000; but, by theii 
 own action, they are precluded from claiming more. 
 
 This action on the part of the Companies, as we conceive 
 is entitled to a great deal more significance, as being a clainr. 
 against a great Government, than in the case of an individua 
 proposing to settle his claim against another individual. An 
 individual may offer to take less than he thinks he is entitled 
 to, because ho may be distrustful of the integrity or ability 
 of his debtor. But no such motive could exist in this case. 
 The integrity of the United States, as also its ability to pay, 
 was above all exception. Nothing, therefore, can be im- 
 agined more improbable than that a company so sagaciously 
 managed as this Company is, having a valid claim against r 
 party so eminently responsible as the Government of the 
 United States, would voluntarily abate its claim of $4,281,036, 
 and that of its excrescence, the Puget's Sound Company, for 
 $1,168,000 00, and propose to receive .-$500,000 in full satis- 
 faction of both claims, unless it well knew that the lessei 
 

 II 
 
 108 
 
 sum it propose! to receive is all to which it was justly 
 ertitlc(L 
 
 The eminent counsel for the Company sees the immense 
 moral efFect of this transaction, and he puts forth all his 
 ability in advance to break its force. It is unnecessary to 
 follow him in his iufjenious ar^uraent. There stands the 
 great fact: the seal cannot be rubbed off the bond. That 
 fact speaks a language so potential, that we leave it to certify 
 for itself; satisfied that no force of professional intellect can 
 fritter away its strength. 
 
 In showing that the British Government in 1860 deemed 
 the aggregate claim of the two Companies as of the value of 
 only $500,000, we present but a very small part of the facts 
 bearing on this most important and vital question. We pro- 
 ceed to show that in the offer of $500,000, made in the year 
 1860, the British Government acted advisedly, and did ample 
 justice to the real claims of the two Companies. 
 
 The question of the rights of the Companies had just under- 
 gone thorough examination, on the part both of the Govern- 
 ment and of Parliament. In the sequel we shall show what 
 and how much cause there was for this investifjation. 
 
 In the course of that investigation, the committee of the 
 House of Commons called on the Hudson's Bay Company for 
 an exhibit of its financial condition. 
 
 The Company responded with a statement, which we abridge 
 
 as follows : 
 
 e s. a. 
 
 Stork in the name of proprietors 500,000 
 
 iianda and buildings, exclusive of Vancouver's Island and 
 
 Oregon .^ 31S,SSl 12 S 
 
 Advanced for various ohjects at Vancouver's Island 87,071 y 3 
 
 Amount invested in Victoria and otiier posts on Vi^ncouvcr'a 
 
 Island 7.'3,000 
 
 Paid the Earl of j^elkirk Sl,lll 18 5 
 
 " I'rojierty and investments" in Oregon, secured to the Com- 
 pany as " possessory ri^lils " bytr^, ty with the United States, 
 say, >;i,000,000 200,0(t0 
 
 Total capital £1,265,007 19 4 
 
 Pari. Rep. on Hudson's B. Co., p. 449, Ap. No. 18. 
 
 We perceive, in this exhibit, the commencement of dccop- 
 tion on the part of the Company. 
 
109 
 
 s. a. 
 
 ,1 18 5 
 
 )0 
 
 Ft 10 i 
 IS. 
 
 lU' cop- 
 
 Ill tlie first place, they put down the ■whole capital at the 
 loAv sum of about a million and a quarter pounds, which, as 
 wo shall presently see, is an under-estimatc of the miscellan- 
 eous assets which the Company really possessed, indepondcnt 
 of its territorial ri<^hts within its chartered limits on Jjallin's 
 Bay. 
 
 Secondly, in this exhibit the Company cxagf^erates its claim 
 against the Uniteil (States, stating it at $1,000,000, which claim 
 at a time rtmch nearer to its inception, and when the structures 
 of the Company were in a better condition, the Company, 
 through its governor. Sir John Pelly, estimated at only 
 8700,000. (U. S. Misc., p. 240.) 
 
 We perfectly understand how, in this exhibit, the sum of 
 $1,000,000 is stated as the amount of the claim against the 
 United States; for that is the sum to which the claim was 
 forced up by Sir George Simpson, when he appeared at Wash- 
 ington, December o, 1852, and put this matter into the clauii 
 market, taking care, of course, to demand such amount as 
 should leave ample room for abatement by the Government, 
 and, even after that, have a spacious margin left for the benefit 
 of Mr. George M. Saunders and his associates, wlio were, it 
 appears, engaged to state this claim in the State Department 
 and before Congress. Compare the confidential letter of Sir 
 George Simpson to Mr. George M. Saunders, and the "memo- 
 randum of the, >«ame person with reference to the Hudson's 
 Bay Company iiid Puget's Sound Company's possessory rights 
 in Oregon." U. S. Misc. Ev., pp. 241, 250.- 
 
 Sir George Simpson means to wear the appearance of exact- 
 ness ; for he files a bill of particulars. We pray the Commis- 
 sioners to scrutinize this bill of particulars, and compare it 
 with Mk- present estimate of the Company. 
 
 And yet it is manifest that tiie estimates there presented 
 were intended only as a i^how, in the expectation of some 
 smaller sum being offered in return by the United States. 
 
 We now propose to call attention to certain circumstances, 
 which took place when, in July, 18(3'j, the whole interests of the 
 Hudson's Bay Company wore transferred to Mr. Edward W. 
 Watkin, and cr tain gentlemen acting with him, and Srir 
 
110 
 
 I 
 
 I 
 
 ('•M 
 
 I 
 
 ^I 
 
 ■ > •-■■[ ■ J 
 
 ' *.■:''' ■' 
 
 
 
 Edmund Head was elected Governor of the Company. (U. S. 
 Mis. Ev., p. 336.) 
 
 The stock of the Company previous to this transfer was 
 nominally iJ500,000, but it rated on the London stock ex- 
 chantT-e at double that sum. The market value of the Com- 
 pany was therefore <£1. 000,000. The new society paid 
 XI, 500,000 for the transfer to them of the entire interests of 
 the Company. 
 
 The parties to whom the transfer was made seem to have 
 organized themselves under the name of " The International 
 Financial Society," and thus, by a sort of transmigration of 
 soul, or metempsychosis, the IludsoJi's Bay Company shuffles 
 off its mortal coil, and reappears as " The International Fi .a,i- 
 cial Society." S'fat nominis umbra. 
 
 The prospectus issued on behalf of tiie " Financial Com- 
 pany," to induce subscriptions to the new issue of stock which 
 followed upon this, states the resources of the Company as 
 follows: 
 
 1. The assets (exclusive of Nos. 2 and 3) of the Hudson's 
 Bay Company, recently and specially valued by competent 
 valuers at .4^1. 023,560. 
 
 2. The landed territory of the Company, held under their 
 charter, and which extends over an estimated area of more 
 than 1,400,000 square miles, or upwards of 806,000,000 acres. 
 
 3. A cash balance of £370,000. (U. S. Ev. Mis., p. 21.) 
 Mr. Armit, registrar of shares in the Hudson's Bay Com- 
 pany, says: "I do not know what assets were included in tlie 
 paragraph numbered one of the prospectus." Such paragraph 
 was supposed to include all the property of the Company, ex- 
 cept as therein excepted. {lb., p. 18.) 
 
 Further, Mr. Armit says: "I do not know how the sum 
 mentioned in paragraph one was arrived at, nor any of the 
 details of which it was composed. (lb.) 
 
 It seems strange that Mr. Armit, occupying the official 
 position he does in the Company, should be so ignorant as he 
 seems to bo on a matter of so much importance, and about 
 which the information should bo so clear. The Coip.pany, 
 proposing to issue s'.ock upon a valuation of £:i,000,OQ'?, issues 
 
 
Ill 
 
 jr their 
 more 
 acres. 
 21.) 
 Coin- 
 in the 
 graph 
 ly, ex- 
 
 le sum 
 lof the 
 
 lofRcial 
 
 as he 
 
 about 
 
 Ipany, 
 
 ■ssues 
 
 
 its prospectus, stating its assets, ^A'ith certain namctl excep- 
 tions, to be <£1,023,56!), and yet one of its chief clerks, whose 
 duties would seem peculiarly to authorize such information, 
 is wholly ignorant upon the subject. 
 
 The Company, being aware that such information was 
 sought for by the United States, were bound to have produced 
 a witness who could give this information. 
 
 The fact that Mr. Armit, tlie witness tendered to the United 
 States, could not give this information, and that the Company 
 failed otherwise to furnish it, furnishes, we conceive, just sub- 
 ject for comment, and authorizes conclusions unfavorable to 
 them. 
 
 It was certainly a matter of great importance to the United 
 States to ascertain the items included under the head of No. 1, 
 in the prospectus, which went to make up the sum of XI, 023,- 
 509, because, in this way they could asce.'tain the estimate 
 placed by the Company, as late as July, 18G3, on their claim 
 against the United States. The United States called for such 
 information from the Company, and the witness offered by the 
 Company is unable to give this information. If this informa- 
 tion could have been advantageous to the Company, wc have 
 every reason to presume it would have been furnished. Its 
 not being furnished is a circumstance against the Company. 
 Practically, it is the suppression of information whicii it was 
 the duty of the Company to furnish, when demandeil of them. 
 This action on the pnrt of the Company necessarily justifies 
 all inference unfavorable to it. 
 
 But we are not left either to speculation or to inferences 
 founded on the reticence of the Company for means of conclu- 
 sion respecting the elements of the calculation of values, 
 wliich constituted the basis of the transfer of the property, as 
 well of the Puget'S Sound Company as of the Hudson's Bay 
 Company, to the International Financial Company. Wo 
 find this clearly explained in the Report of the Delegates of 
 the Canadian Government, (July 12, 18G5,) as follows; "It 
 is but two years since the present Hudson's Bay Company 
 purchased the entire property of the old Company ; they paid 
 £1,500,000 for the entire property and assets, in which were 
 
1 
 
 112 
 
 included a large sum of cash on hand, large landed properties 
 in British Columbia and elsewhere, not included in our ar- 
 ran<'cment, a very lar<i;o claim a;!;ainst the United States 
 Government under the Orei^un treaty, and ships, goods, 
 pelts, and business premises in England and Canada, valued 
 at i;l,023.o(t9. The value of the territorial rights of the 
 Company, therefore, in the estimation of the Company itself, 
 will be easily arrived at." (U. S. Mis. Ev., p. 350.) 
 
 Now, let us analyze this sta<-'^ment, presenting its contents, 
 in the first place, in a sched'.ie, as follows: 
 
 llemcmber, the sum total paid for the entire property and 
 assets purp -'P to be .£1,500,000. 
 
 To make u^ mrt this grand total, we liave the enumera- 
 tion of various icv;ms, specific sums for which are not carried 
 out, but the sum total of which is .£1,023,509. 
 
 Then we may state the following account, according to the 
 report of the delegates: 
 
 1. A large sum of cash in liand £ s. d. 
 
 2. Largo latiJud i)rojiorties in British Coliunbia, ami elaewheru. 
 M. Slii[is 
 
 4. (foods 
 
 5. Tells 
 
 (i. Busiuess-preniise.s iri J'liiglaml 
 
 7. ]>iisiiiess-]ireuiises in Catiaila 
 
 8. Claua against the United Slates Governuuait 
 
 Total .': 1/1 J."., ;•)(;'.) 
 
 Add value of the territorial rights of the Company •Kivlol 
 
 Giand total .C 1, ')()(), UOO 
 
 We entreat the careful attention of the Commissioners to 
 all and each of the items of this exhibit, and the several sums 
 not specified, as well as the suras specified. 
 
 The territorial rights of the Company include the vast do- 
 main granted by the charter of Charles II; in that immense 
 territory, stretching from Canada north indefinitely toward 
 the pole, and from the Atlantic ocean westward, into beyond 
 the centre of the continent of America. .Here the Company 
 is not troubled by the vagueness of possessory rights only; 
 and it does not need to tortue the vernacular idiom, or to 
 falsify all the principles of jurisprudence, or to corrupt its 
 
porties 
 our ar- 
 Stutes 
 goods, 
 valued 
 of the 
 ' itself, 
 
 utents, 
 
 I'ty and 
 
 lumera- 
 carried 
 
 r to the 
 
 (i:i:5,r)(ii.» 
 
 ,ri(l(),UOO 
 
 Mcrs to 
 il sums 
 
 ast do- 
 menso 
 toward 
 )eyond 
 Impany 
 
 only; 
 
 or to 
 ipt its 
 
 113 
 
 own conscience, in the vain endeavor to transform and magiiif}' 
 possessory rights into fee simple, as it does in Oregon and 
 Washington: all such violation of right and of truth is super- 
 fluous within its chartered limits, resting on IJaflin's bay: there 
 it has a fee simple by the express grant of the Crown. 
 
 Nor, within those limits, does the Company need to exhaust 
 itself in the vain effort to establish possessory rights in run- 
 ning water, or respirable air, or in vivifying sun-light; for 
 all these, in that region, the Company deals with as chartered 
 pro "(rietor of the soil and lord of the territory. 
 
 Moreover, in that vast region, the Company has trading- 
 posts and structures of residence or business of far more im- 
 portance than its ruined and abandoned posts in Oregon and 
 Washington, whether the mud-hovels of Fort Hall, or Fort 
 Boiso, or the more 'pretentious edifices of Fort Vancouver. 
 
 We suppose, also, that as the Company owns the land of 
 its chartered territory, it also owns the portages, and has no 
 occasion to fabricate there any hojjus claims in this respect. 
 
 We suppose, furthermore, that in that territory the Com- 
 pany does not need to fly in tiie face of common sense, by un. 
 dertaking to set up fee simple title to any of the waste pas- 
 tures where its horses or cattle may have happened to crop 
 a blade of grass while wandering in the wilderness, or where- 
 soever any servant of the Company may have happened to 
 fell a tree or cut a twig in the forest: the Company is driven 
 to such ridiculous expedients and pretences for the foundation 
 of fee simple title only when prosecuting claims against the 
 United States in Oregon or Washington. 
 
 And jct,mirabih'. dictu ! whilst the Company, on a regular 
 and well-considered contract of sale, values the sum total of 
 its proprietorship, of whatever nature had [)laced in that 
 vast territory, of earth, water, sky, air, — and all of natural 
 objects it contains, as aboriginal man, beast, bird, fish, in- 
 sect, and forest, — and whatsoever of costly improvements tlie 
 Company has, in the course of more than two hundred years, 
 introduced there; and whatsoever rights of navigation or trade 
 its charter, or its misconstruction of its charter, may prompt 
 
 it to assert: — all these vast proprietary interests the Company 
 15 
 
114 
 
 
 deliberately, and on full consideration, in the year 1863, 
 valued and sold for the sum of ,£476,431; whilst now, it has 
 the superlative shamelcssncss and assurance to claim of the 
 United States the sum of =£1,119,850, on account of scattered 
 possessions remaining to it in Oregon and Washington, of 
 not one hundredth, no, not one-thousandtL, ,- :. n- ,aiue of 
 its proprietary rights in the chartered territory of the Com- 
 pany. 
 
 Look we now for a moment into the blanks of the balance 
 of the price for which the Company sold itself to the Finan- 
 cial Society. 
 
 Into their balance enters not merely a sum of cash in hand, 
 but a large sum. We know how much that sum is, for which 
 reason we might fill up the amount in the exhibit, it being 
 stated (.£370,000) in the Prospectus of the Financial ociety. 
 
 There is some question, it is true, whether this cash balance 
 is a part of, or in addition to, the <£1, 023,509, it being stated 
 one way at p. 350 and another at p. 28. But, as we shall find 
 in the sequel, the value of the other items is so great, that it 
 is quite immaterial whether the particular sum be included in 
 or excluded from the general amount. If excluded there, it 
 distinguises th^^ amount to be credited for the territorial rights 
 of the Company. 
 
 Enter, also, not simply landed properties in British Colum- 
 bia, but landed properties elsewhere also ; where, is not stated, 
 but certainly not in England, nor in Canada, nor in the 
 United States; and these are large landed properties. 
 
 Then we have ships, who knows how many? We readily 
 conceive that neither Mr. Roberts, the accountant of the Hud- 
 son's Bay Company, nor Mr. Armit, the registrar and the ac- 
 countant of the Puget's Sound Company, can afi"ord to give 
 us any knowledge on this subject; for we have already seen 
 that the factors, agents, and clerks of the Company, expatiat- 
 ing at will in the boundless expanse of their occidental empire, 
 expend as much money as they please, consume as many goods 
 as they please, build and sail as many ships as they please, 
 while transmitting as little money as they please, and sub- 
 jecting themselves to as little accountability as they please, to 
 
1863, 
 it has 
 of the 
 ittercd 
 ton, of 
 iiue of 
 3 Com- 
 
 lalance 
 Finan- 
 
 i hand, 
 ; which 
 t being 
 ociety. 
 balance 
 ; stated 
 lall find 
 , that it 
 uded in 
 here, it 
 I rights 
 
 Colum- 
 stated, 
 in the 
 
 'eadily 
 le Hud- 
 the ac- 
 Ito give 
 ly seen 
 ipatiat- 
 ^mpire, 
 
 jioods 
 
 Iplease, 
 
 id sub- 
 
 ase, to 
 
 115 
 
 their nominal superiors of the Hudson's Bay House at London. 
 
 But that these ma^-iiificent sitirnors and liiiih-mifihtincsses 
 did have sliips, and those of the best, in ample number, we 
 may not doubt. 
 
 Then wo have "goods" and ''pelts," as distinguished from 
 "goods." 
 
 Pelts constitute the production and result of the business of 
 the Company, being the natural crops, as it were, of the im- 
 mense territory between the Atlantic and Pacific seas on the 
 east and west, and between the inhabited country of the 
 Canadas and tiie United States on the south, and on the 
 north the Arctic sea. For wo know that all created animals 
 in that region are born and live for the sole purpose of being 
 killed by the Indians for the benefit of the Company, and 
 that all the Indians therein are born and live for the sole 
 purpose of promoting the gain of the Company. We imagine, 
 therefore, though we do not know exactly, the large sum re- 
 quiring to be entered in the blank left for this item of the 
 assets of the Company. 
 
 Next, we have "goods," which word it is obvious, from the 
 context, is intended to designate all merchandise belonging to 
 the Company other than pelts, whether the same be in Eng- 
 land, in British America, in the United States, or passing to 
 and fro on the ocean ; cargoes of the ships appertaining to 
 the Company, and engaged in its wide-spread commerce. 
 For this merchandise, then and there, large sums must be 
 enters 1 in the appropriate blank of the exhibit. 
 
 Finally, we have the business-premises of the Company in 
 England and in Canada; of these, no specific valuation is 
 vouchsafed to us. But we can well imagine that the business- 
 premises of such a Company must be of great value, in Canada 
 as well as in England. 
 
 As to England, the establishment, denominated in the evi- 
 dence the Hudson's Bay House, has a name which speaks for 
 itself as magnitude and value, and for this item, then, another 
 large sum is to be entered in the proper blank of the 
 exhibit. 
 
 We now appeal to the wisdom and common sense of the 
 
116 
 
 .liP 
 
 Commissioners to say, after all the above items shall have 
 been carried out in the exhibit, how much, or how little rather, 
 can be left as the true appraisement of the claims of the Com- 
 pany against the United States? 
 
 We respectfully submit, that by no possibility can that ap- 
 praisement exceed the estimate of $700,000 made by Sir John 
 Pelly, or the sum of $500,000 demanded by Lord Lyons, or, 
 as a barely possible maximum, the sum of $1,000,000 claimed 
 by Sir George Simpson. 
 
 Here wo ask attention to that most instructive, complete, 
 and exhaustive estimate and exhibit of the riglits of the Com-^ 
 pany, communicated to the Department of State by Governor 
 Stevens. 
 
 See U. S. Misc. Ev., pp. 209-226. 
 
 His appraisement of §300,000 would suffice, relatively to 
 the other items of the exhibit, to fill up the blank for the 
 claims against the United States, as mutually appraised by 
 the Hudson's Bay Company and by the International Finan- 
 cial Company, in their contract of purchase and sale. 
 
 We defy the learned and able counsel of the two Companies 
 to argue away these facts. No conceivable ingenuity of coun- 
 sel can serve to shake their strength. 
 
 Remember, that this appraisement was made by " competent 
 valuers," mutually agreed, of course, between the Hudson's 
 Bay Company and the Financial Society. 
 U. S. Misc. Ev., p. 21. 
 
 Note, also, that the price paid by the Financial Society 
 for the entire stock of the Hudson's Bay Company was but 
 £1,500,000: more than two-thirds of which would be paid by 
 the United States, if the plans of these American speculators 
 against their own Government succeed, leaving the speculators 
 in the condition of paying about X850,000 for the entire com- 
 mercial and miscellaneous property and territorial rights of 
 the Company ! ! 
 
 The Company seem to have a chronic habit of setting up 
 extravagant claims against Government. It appears from Mr. 
 Brown's report, [Ib.y p. 346,) that the Company demanded of 
 
117 
 
 ,11 have 
 rather, 
 10 Corn- 
 that ap- 
 iir John 
 ons, or, 
 claimed 
 
 implcte, 
 lie Com-, 
 overnor 
 
 ively to 
 
 for the 
 
 ,ised by 
 
 [ Finan- 
 
 1 panics 
 coun- 
 
 [ipetent 
 ludson's 
 
 society 
 us but 
 )aid by 
 \ulators 
 lulators 
 •e com- 
 ;hts of 
 
 ling up 
 ]m Mr. 
 Ided of 
 
 their own Government €1,000,000 for relinquishing their pro- 
 prietary pretension in the country lying northwest of Canada, 
 which country tlie Canadian authorities deny ever rightfully 
 belonged to the Hudson's Bay Company, because at the date 
 of their charter it was a part of the French possessions in 
 America. 
 
 Upon this point, Mr. Brown, speaking in his official charac- 
 ter for the Canadian authorities, denies the validitv of such 
 claim of the Company; but, conceeding it for the sake of ar- 
 gument, he insists that .£1,000,000 is more than they were 
 entitled to receive for the relinquishment of all their claims 
 from Canada to the Rocky Mountains and from the American 
 line to the extreme north. [Ibid.) 
 
 It further appears that certain persons, Sir Curtis Miranda 
 Lampson, and, it is believed, Mr. jMorgan, banker of London, 
 and other American citizens, are largely interested in the 
 Hudson's Bay Company as stockholders thereof. Sir Curtis 
 Miranda Lampson is named in the Prospectus already referred 
 to as deputy governor. 
 
 The singular spectacle is thus presented of American citi- 
 zens, under the name and sanction of a powerful British cor- 
 poration, engaged in urging huge speculative claims against 
 their own Government. To this peculiar and remarkable fea- 
 ture of the case we desire to call, as it deserves the attention 
 of the Commissioners. 
 
 The transaction, as represented to the United States and 
 as proved by the oral and documentary evidence, may be 
 stated in brief thus : "The London Financial Society aijreed 
 to purchase up the stock, water it, and then reissue it at an 
 advanced value, and sell if they could. This was done to a 
 great extent, but no actual change was made in the organzia- 
 tion of the Company." 
 
 U. S. Misc. Ev., p. 1 and p. 20. 
 
 We take it for granted that this operation of watering the 
 stock of the Hudson's Bay Company, and attributing to it pre- 
 tended rejuvenescence by the empirical contrivance of infus- 
 ing into its veins, not a dose of fresh blood, but a very voluuii- 
 
118 
 
 nous dose of fresh water, must have been conceived in Now 
 York. 
 
 After the Financial Society had thus hhwn up tlic old car- 
 case of the Hudson's Bay Company into such simulated con- 
 dition of youthful vigor, which, after all, was nothing but the 
 morbid bloatedness of dropsy, it was quite natural, that, while 
 their hand was in, they should proceed to water the Com- 
 pany's claim against the United States. 
 
 As we understand the stock operation, it was to issue cer- 
 tificates of <£"20 of the new Company for <£1 of the old Com- 
 pany. 
 
 TV 
 
 Th 
 
 lie of 
 
 lively at hand, th( 
 
 JUS rule or proportion oeing suggestively at nana, tne 
 managers seem to have proceeded to apply it to their claim 
 against the United States. 
 
 The end of which has been, to vjater the claim of the Com- 
 pany until it came to be watei'-logged, and lies now stretched 
 out motionless and lifeless, an object of pity and derision to 
 all beholders. 
 
 A little touch of discretion is needed, even in the inflation 
 of bubbles : which seems to have been forgotten by the manipu- 
 lators of this branch of the aifairs of the Company. 
 
 We pray the Commissioners to note how large was the prop- 
 erty of the Hudson's Bay Company, independently of these 
 claims against the United States. 
 
 We quote from the Prospectus of the "International Fi- 
 nancial Society. (U. S. Miss. Ev., p. 22.) 
 
 1. The commercial property of the Company. 
 
 " The assets of the Company, in which these subscribers will 
 be entitled to an interest corresponding to the amount of 
 their subscription, will consist of goods in the interior, on 
 shipboard, and other stock in trade, including shipping, busi- 
 ness-premises, and other buildings necessary for carrying on 
 the fur-trade, in addition to which there will be funds imme- 
 diately available for the proposed extended operations of the 
 Company, derived partly from the cash balance of the Hud- 
 son's Bay Company, and partly from the new issue of stock, 
 amounting in the whole to a sum of not less than £370,000." 
 
119 
 
 in New 
 
 old car- 
 tod con- 
 but the 
 it, while 
 he Com- 
 
 isue cer- 
 dd Com- 
 
 md, the 
 jir claim 
 
 he Com- 
 tretched 
 rision to 
 
 inflation 
 manipu- 
 
 Ihe prop- 
 lof these 
 
 nal Fi- 
 
 We submit to the Commissioners that the above-quoted ex- 
 
 hibiti 
 
 [ers will 
 )unt of 
 l-ior, on 
 ;, busi- 
 ing on 
 imme- 
 of the 
 I Hud- 
 stock, 
 .000." 
 
 ion, or commercial assets and prcinisos nj)portamiiif:f to 
 the transaction of the commercial business of the (.'omfjany, 
 presents an imposing sum total, fur beyond any possible value 
 of its claims against the United States. If carried out, it must 
 figure largely as an item of the ,£1,023,569. 
 
 2. Miscellaneous real estate of the Company. 
 
 " In addition to its chartered territory, the Company pos- 
 sesses the following valuable landed property: Several plots 
 of land in British Columbia, occupying most favorable sites 
 at the mouths of rivers, the titles to which have been con- 
 firmed by Her Majesty's Government, farms, building-sites in 
 Vancouver island, and in Canada, ten square miles at La- 
 cloche, on Lake Huron, and tracts of land at fourteen other 
 places." 
 
 We pray the Commissioners to contrast this exhibit of 
 the miscellaneous "valuable landed property" of the Com- 
 pany, with all the pretended property or possessory rights of 
 both Companies in Oregon and Washington. Contrast the 
 "ten square miles at Lacloche, at Lake Huron," with the 
 claim at Fort Vancouver; contrast the "tracts of land at 
 fourteen other places" with the scattered petty land-claims 
 of the Company in Oregon and Washington ; cor.trast the 
 "farms, building-sites in Vancouver's island and in Canada," 
 with the farms and pastures of the Puget's Sound Agricultu- 
 ral Company; add "several plots of land in British Columbia, 
 occupying most favorable sites at the mouths of rivers, the titles 
 to which have been confirmed by Her Majesty's <i:>^';jrnment: " 
 consider all this, and then determine how large a sum, in the 
 general exhibit of the Company's property and assets, is com- 
 prehended in the sedulously-modest phrase of " landed prop- 
 erties in British Columbia and elsewhere," making part of 
 the XI, 023,569, and how little of that sum will be left attribut- 
 able to'claims against the United States. 
 
 And in the face of all these enormous values in commercial 
 assets, buildings, lands, water-rights, and other interests, 
 real and personal, which, in common with claims against the 
 
m 
 
 120 
 
 United States, p^o to make up the woU-estimatcil sum total 
 of XI. 023, 5(3!), tlic Huflson's l>:iy Company, for itself and the 
 Pui^ot's Sound Aj^ricultural Company, had tlio unimaginaI)lo 
 presumption to come before the Commission ratin^j; its claim 
 aijainst the United States at the sum of £l,02'>.3r>0 ; about 
 equal in amount to all its immense recoj^nized miscellaneous 
 assets, Inchidhir/ this clnini,' and the Company now desire to 
 amend, by adding nearly £100,000 more to theiv claim, so as to 
 bring it up nearer still to .£l,r)0O,OO0, the estimated value of 
 its entire stock, including all its miscellaneous property and 
 all its vast chartered territorial and proprietory rights in 
 America. 
 
 We employ modest terms when we speak of these rights as 
 vast; they are truly prodigious in ma^rnitude. 
 
 3. Territorial rights of the Company. 
 
 "The Company's territory embraces an estimated area of 
 more than 1,400,000 square miles, or 800,000,000 acr-s, of 
 which a large area, on the southern frontier, is well a ' 'cd 
 for European colonization. The soil of this portion \o 
 
 territory is fertile, producing, in abundance, wheat and other 
 ceresil crops, and is capable of sustaining a numerous popula- 
 tion. It contains 1,400 miles of navigable lakes and rivers, 
 running, for the greater part, cast and west, which constitute 
 an important feature in plans for establishing the means of 
 communication between the Atlantic and Pacific oceans, across 
 the continent of British NortJj America, as well as for imme- 
 diate settlement in the intervening country. The territory 
 is, moreover, rich in mineral wealth, including coal, lead, and 
 iron." 
 
 Here is a marvellous exhibition of property ; nearly one mil- 
 lion and a half square miles of land, or nearly one thousand 
 million acres ; of which., a large area, well adapted for coloni- 
 zation ; fertile, producing cereal crops in abundance, and ca- 
 pable of sustaining a numerous population ; with fourteen hun- 
 dred miles of navigable lakes and rivers; rich in mineral wealth, 
 including; coal, lead, and iron ; all this the undisputed property 
 of the Company in fee simple, and yet appraised by competent 
 valuers, arid by free agreement of sagacious and experienced 
 vendor and vendee at c£500,000; and then contrast this honest 
 
 
121 
 
 no tnil- 
 usand 
 coloni- 
 !ul ca- 
 ll hun- 
 ealth, 
 operty 
 pctent 
 ienced 
 honest 
 
 valuation with the dishonest valuation of €1,110,850 finally 
 placed by the Companies upon the relatively trivial and insiji;- 
 nificant possessory interests held or claimod by them within 
 the United States. 
 
 While thus analyzing these documents, and comparing the 
 estimates they contain with those before the Commissioners, in 
 the memorials of the two Companies, and in the testimony of 
 their witnesses, it is dilHcult to repress the sentiments of in- 
 dignation which arise irrepressibly in the mind, or to refrain 
 from applying to the sordid fabricators of such claims, and 
 of such testimony, the appropriate language of reprobation 
 and scorn. 
 
 Under ordinary circumstances, it would have been sufficient 
 to lay these documents before the Commissioners, alongside 
 of the memorials of the two Companies, and without argu- 
 ment, as without other evidence, to leave the (Jommissioners 
 to judge. 
 
 But the gravity of an international procedure, before an 
 elevated international court, seemed to constrain the United 
 States to a different course; that is, to take up the testimony 
 of the claimants, man by man, and fact by fact, as we have 
 done, and to demonstrate the interested exaggeration and 
 mercenary misrepresentation of the Company's factors, agents, 
 and instruments, by the overwhelming mass of contradictory 
 testimony, which we have brought forward, from the lips of a 
 cloud of witnesses, not surpassable in dignity, general intelli- 
 gence, especial knowledge, or personal worth, by any body of 
 witnesses ever produced in any cause in the judicial history 
 of Europe or iVmerica. 
 
 VII. Remarks on legal opinions in favor of the Companij. 
 
 We propose to make some brief comments on the legal opin- 
 ions concerning the Company's rig'ats, referred to in the Com- 
 pany's argument. 
 
 These opinions emanate frjm different members of the 
 
 legal profession, living or deceased, including Mr. Richard S. 
 
 Co-xe, Mr. Webster, Mr. Josiah Randall, Mr. Edwin M. Stan- 
 16 
 
122 
 
 viPI 
 
 ton, and others. The opinions were obtained at the instance 
 of the Company in the years 1848 and 1849, and were, we 
 presunie, paid for as professional labor, and collcctcMl in a 
 printed pamphle*", under the inspiration, it is supposed, of Sir 
 G. Simpson. 
 
 The object of these opinions was to influence favorably for 
 the Company the negotiations then pending for a settlement 
 of the Company's claims against the United States. 
 
 We find no fault with the procurement of these opinions for 
 the purpose intended. It was perhaps quite legitimate. 
 
 But we submit, that lit'le authority can be given to such 
 mere ex parte legal opinions thus rendered. They should 
 more properly be denominated arguments thai opinions. Pro- 
 fessional gentlemen are often applied to, as on this occasion, 
 for an exercise of their leijal learning; in such a manner as to 
 present a certain side of a question in the strongest light. 
 For this purpose they receive their fee, and for this purpose 
 they t'xercise their skill. If a lawyer should be so unsophis- 
 ticated as to render an opinion adverse to his client's interests, 
 such opinion would not be very extensively promulgated by 
 the disappointed client, and the counsel who had given such 
 opinion would not be likely to be called upon for any future 
 exhibitions of his perverse learning. 
 
 If Mr. Daniel Webster, as judge, had, after due considera- 
 tion, given an opinion in favor of the Company, it would be 
 justly entitled to great weight. But an opinion from Mr. 
 Webster as the feed-advocate of the Company has no other 
 force than its intrinsic merits impart. In such case, his opin- 
 ion is not to be weighed, it is to be considered. 
 
 In these remarks, wo, of course, do not in any degree in- 
 tend to censure the practice of members of the bar in giving 
 this class of opinions, but merely to point out their true char- 
 acter, that they may be received in their proper light, as argu- 
 ments and not decisions. 
 
 With these observations, we now refer to certain points 
 of tliese opinions, in which we do not concur: without at- 
 tempting to follow the opinions in the order in which they are 
 printed in the pamphlet compilation. 
 
 
123 
 
 Mr. R. S. Coxc says : 
 
 " It is, I think, clear, that in considering this point, (the rights 
 of the Company,) reference must be had to the law of En^r. 
 Jand, which must furnish the rule by which these rights are 
 to be defined." 
 
 Pamphlet, p. 3. 
 
 AVedo not consider this proposition as entirely accurate. 
 If we wish to ascertain under what authority the Company, as 
 a corporation, were being and acting in the disputed territory 
 and what privileges they were authorized to exercise, it is 
 necessary to refer to the laws of England. If, for instance, 
 that law empowered the Company to carry on exclusive trade 
 with the Indians in the territory for ten years, with express 
 denial of all other privilege, and a positive prohibition of 
 longer extension of time, such action of the English law would 
 conclusively determine the rights of the Company in these re- 
 gards. It is upon this ground, that, as we conceive, the Com- 
 pany s corporate character, and its duration in the territory, 
 are regulated and determined by the license of trade. 
 
 -But when we come to ascertain the possessory rights of the 
 Company, then, in addition to the English law, we hive to con- 
 sider the law of the United States, and that by virtue of the 
 principle of law known as the lev loci rei nta>. This rule of 
 law is laid down by Mr. Wheaton, as follows: 
 
 "The law of a place whore real property is situated governs 
 exclusively as to the tenure, the title, and the descent of such 
 property. 
 
 Wheaton's International Lav., p. 81. 
 
 See further, Iluberus, do r„nflictu Leg., 1, title 3 
 sec. 15. ' 
 
 The general rules ns to the transfer of immovable prop- 
 erty, inter vivos, on which the greatest agreement amon^r the 
 courts and jurists is found, are that the hx loci rei sitae'^mn^i 
 govern in determining: 1. The disposition of immovable prop- 
 erty, (real estate;) 2. The personal caimcit^, to take or to 
 transfer immovable property; 3. The forii.alitics of possess- 
 ing title to immovable property; 4. The extent of the do- 
 
m 
 
 124 
 
 minion over immovable property; 5. The question what is 
 and what is not real estate. 
 
 Wheaton, p. 81, (note.) 
 
 Story's Conflict of Laws, (Redfield's edition,) ch. 10, 
 sec. 424—454. 
 
 The first principle of law, to which we call attention in this 
 connection, is this: The territory was always American terri- 
 tory. The treaty of 1846 was not a treaty of cession; it 
 was a treaty of adjustment of boundaries. The treaty did 
 not confer any new title on the United States. It merely 
 acknowledged the title already existing. The United States 
 had hitherto, for a period long antecedent, claimed the terri- 
 tory as a part of the United States, and this claim was con- 
 troverted by Great Britain. By the treaty of 184G, the title 
 of the United States was admitted. The treaty of 1846 
 therefore was not a treaty of cession: it was a treaty for the 
 adjustment of boundaries. 
 
 The distinction between these two kinds of treaty is well 
 expounded by Mr. Coxe, in his opinion, (p. 47.) After stating 
 that, upon the cession of a territory by treaty, the antecedent 
 titles of land, conferred by the ceding sovereign in the terri. 
 tory, are binding on the sovereign receiving the cession, he 
 adds: 
 
 " In regard to treaties entered into for the purpose of adjust- 
 ing controverted questions of boundary, the principles of law 
 applicable to them are widely dissimilar, if not diametrically 
 the reverse. Each nation admits by an instrr.meiit of this 
 character that its former pretensions, beyond the now-adjusted 
 line, have been unfounded, and that the rights of the other 
 party were originally valid. By the mere force and effect of 
 such a settlement, therefore, all the acts of either party, 
 beyond the boundary now fixed as the limit of its territory, 
 are annulled and invalidated. The authority of the govern- 
 ment from which they emanated is admitted to have been ab 
 ougine, defective and invalid, and any title originating in a 
 source and resting on a foundation confessedly wrong, cannot 
 be maintained." 
 
 The question of title to land, then, in this territory, is to 
 
125 
 
 10, 
 
 idjust- 
 ot" law 
 rically 
 f this 
 justed 
 other 
 act of 
 party, 
 ritory, 
 overn- 
 ccn ab 
 |g in a 
 jannot 
 
 ', is to 
 
 be determined, not by reference to English law, but to the law 
 of the United States. 
 
 From these principles of law important consequences flow. 
 
 According to the land-law of the United States, as appli- 
 cable to this territory at the date of the treaty of 1846, there 
 was no provision, by which title to land could be acquired in 
 the territory. The lands had not been surveyed, and were 
 
 therefoi 
 
 )t open t( 
 
 to general purchase. The donation law was 
 not then in existence, and the pre-emption law was inoperative, 
 because the Indian title had not been extinjiuished. Under 
 this state of the law, all persons in the occupation of land in 
 the territory were liable to be treated as trespassers. 
 
 To avoid this harsh result, the treaty provided, in exception 
 of the general principles of law applicable to the case, that 
 the possessory rights of the Company to land in the territory 
 should be respected. Without this provision in the treaty, 
 the Company would have had no rights whatever in land: the 
 treaty protected their possessory rights, but nothing more. 
 
 We think, therefore, we have established the proposition 
 we started with, namely, that, in determining the rights of 
 the Company, reference must not be had exclusively to the 
 law of England; but, on the co irary, so far as question of 
 title to land is concerned, reference must l)e had to the law 
 of the United States. 
 
 The next correction we make of the opinion of Mr. Coxe is 
 in reference to the following passage: 
 
 " The territory on the west coast of America wa> not com- 
 prehended within this original charter, but its general pre- 
 visions have been extended to that region by subsequent nrts. 
 The statute 40 George III, passed on the 11th of An:^ust, 
 1803, that of July 2, 1831, the royal grant of 21st December, 
 1821, and another still more recent, to be found in Groenhow, 
 extend territorial rights to this northwest country, and modify 
 in some particulars the terms of the original grant." (p. 4.) 
 
 We deny that the territorial rights of the Company were 
 extended to this " tiorthwcst country," and we call for the 
 production of any charter or license from the British Crown, 
 
126 
 
 or act of tlie British Parliament, extending the territorial rights 
 of the Company to this region. 
 
 By their original charter, the Company were entitled to three 
 great rights at most, namely : 1, possibly a mi lified jurisdic- 
 tion ; 2, possil)ly, but probably not, exclusive trade; and, 3, 
 proprietary title to all lands. But the original charter was 
 expressly limited to the country around Baffin's bay. 
 
 In the country around Baffin's bay, they were in fact the 
 governing power, with right (if not exclusive) of every kind 
 of trade, — proprietors of all the soil. 
 
 In the northwest country, it was the same Company, it is 
 true, but with more restricted powers and privileges. They 
 were not the governing power, though authorized to exercise 
 certain powers in the suppression of crime; they had only an 
 exclusive Indian trade; and they were not universal proprie- 
 taries of the soil. Their rights and privileges in the north- 
 west country were not by virtue of their original charter, but 
 under their special license of trade with the Indians. 
 
 Mr. Coxe further says: 
 
 "Had the territory in question been ascertained to be with- 
 in the absolute control and sovereignty of Great Britain, it 
 would have been difficult to prescribe any limits to the terri- 
 torial rights of the Hudson's Bay Company." (p. 4.) 
 
 We shall show in the sequel, by conclusive evidence, that 
 JNlr. Coxe is totally mistaken in this opinion. 
 
 The very condition of affairs, which he supposes conject- 
 urally might have taken place, with regard to the Company 
 in this territory, has actually taken place in British Columbia, 
 and their riglits have received a practical construction from 
 the British Government, and which, being acfjuiesced in by the 
 Company, furnishes a conclusive answer to Mr. Coxe's suppo- 
 sition. 
 
 The British Government, by proclamation of September 2, 
 1858, revoked the license of exclusive trade with the Jndians. 
 U. S. Misc. Ev., p. 388. 
 
 The Company promptly submitted to tliat, as a, legitimate 
 exercise of power. 
 
127 
 
 Upon this subject, Gov. Dougla.s, in his despatch to Sir E. 
 ^- Lytton, of (late of Novomber 27, I808, says • 
 
 -It is, perh.p.s, unnecessary to occupy jonv 'time with re- 
 n. ks concennng the privileges of the Hudson's Bay CW 
 P-.}, ^ h.ch have ceased to exist in British Columbia.'' 
 u. fe. hv., Mis., p. 303. 
 
 Further, we find the following extract in a letter of the 
 
 date of November 24, 1858, from John \Vark and Du^aid 
 
 MacUvKsh, ch.ef factors of the Company, to Gov. Dougtas : 
 
 Ue beg leave to call your excellency's attention to the 
 
 low.ng hst claims to land in British Columbia, which we 
 
 consider as belonging to the Hudson's Bay Company, and 
 
 rus that then, title to the same will eventually be confil-med 
 
 by Her Majesty's Government." 
 
 Here follows the list of fourteen forts. 
 U. S. Ev., Misc., p. 353. 
 
 Here we see no claim of general sovereignty, or universal 
 piopnetary right, to all the lands of the northwest ; but a 
 modest petition is made for concessions of title to a few iso- 
 Jated spots of ground. 
 
 The despatch of Governor Douglas, which accompanies this 
 modest petition, throws a flood of light on the right of the 
 Company to land in British Columbia. 
 
 lie says : 
 
 "Ilcr Majesty'. Government may probably conshler that 
 
 :quired rights to the soil 
 
 ],„ ,1 - •, ,. ". 1 -" **•■'• improvement, as well as 
 
 by the public service which the Co 
 
 tl,« IT 1 ' ,•' n-^ - v^uvurnmenc may probably c 
 he Hudson s Bay Company have acquired rights to the soil 
 , . "°^' Pej-missory occupation and ° 
 
 )mpany have rendered t 
 
 the country, and may, therefo 
 
 )fjud 
 
 icious liberali 
 
 re, meet their claims i 
 
 n a spirit 
 
 pany s possessory rights in 
 
 ty, especially as the settlement of the C 
 
 om- 
 
 tion of the third article of tl 
 
 regon, rusting on the construc- 
 
 le tr 
 
 1846, with the United States of A 
 
 , ..... ...^ v....tcu oiaies or America, wii 
 
 influenced by the decision of Her Majesty's G 
 allowing or disallowing the nossessorv rLrhr. nf 
 
 eaty of the 17th of July 
 
 ica, will probably be 
 
 allowing or disallowinrr tl 
 in British Columbia. 
 
 Tovernment m 
 
 possessory rights of the Company 
 
 U. S. Mis. Ey 
 
 p. 352. 
 
128 
 
 9f 
 
 m 
 
 To comprehend the full force of these expressions of Gov- 
 ernor Doughis, it is proper to bear in mind, that he was a 
 strong partisan of the Company, having long been in high 
 officiiil position in tts service, and having previously mani- 
 fested his zeal by giving a strongly-colored deposition in 
 its favor. Yet Governor Douglas, decided as are his partiali- 
 ties for the Company, does not venture to claim the sites of 
 a few obscure forts for it as a matter of right, but appeals to 
 the grace and bounty of the Government, and this at the very 
 time when he is seeking to have the business so managed as to 
 strengthen the Company's claim to lands within the United 
 States. 
 
 We think we may safely conclude, in opposition to the opin- 
 ion of Mr. Coxe, that there is no difficulty in prescribing 
 limits to the territorial rights of the Company, in territory of 
 the northwest, within the absolute control and sovereignty of 
 Great Britain. This great sovereign power, which assumed 
 such vast proportions in the imagination of Mr. Coxe, lets 
 fall its sceptre, and shrinks within the most narrow limits, at 
 a few written words from Sir E. B. Lytton. 
 
 Further, Mr. Coxe says : 
 
 "They (the Company) appear, with the knowledge, and at 
 least the implied sanction of that Government, (Great Britain,) 
 to exercise an unlimited authority, as well to grant to others, 
 as also to appropriate in severalty, the absolute proprietor- 
 ship of such lands as they pleased." (p. 5.) 
 
 We know of no fact, which justifies this statement in ref- 
 erence to the territory in the northwest, including this terri- 
 tory. We utterly deny its truth. Such statement may be 
 true in regard to the region embraced within their original 
 charter, around Baffin's bay; but it is entirely unfounded, 
 so far as the territory here in question is concerned. 
 
 Mr. Coxe has failed to appreciate the decisively-important 
 fact, that the Company occupied a difi'erent position in 
 reference to the territory in the northwest, from what they did 
 in reference to the territory embraced in their original charter. 
 The Company on Rupert's Land were quite another body from 
 
12l> 
 
 in ref- 
 terri- 
 
 |ay be 
 i";inal 
 
 glided, 
 
 )rtant 
 )n in 
 3y did 
 ter. 
 from 
 
 what they were on the Columbia. The difterencc between the 
 Compuny at Yoik Factory and at Astoria, was as great as 
 was that of the Esist India Comi)any on the Ganges and on the 
 banks of tlie Thames. 
 
 At Norway House, the Company is absolute proprietor of 
 a vast portion of the continent; iu Oregon Territory, it was 
 a mere fur-trader, with temporary occupancy of land, and 
 shorn of all its princely prerogatives. 
 
 It is from not keeping in mind this cardinal fact, that 
 such erroneous impressions have been taken up by Mr. Co.\e 
 and others, as to the " possessory rights" of the Company. 
 
 To illustrate conclusively the erro'' into which Mr. Coxe 
 has fallen, in the paragraph of his opinion on which we are 
 now commenting, we ask for a single instance in which the 
 Company have grante<l to others the absolute proprietorship 
 of a>i[i lands, as he alleges they have done, in this territory, 
 west of the liocky Mountains. We deny that a single exam- 
 ple of this can be found. 
 
 Mr. Webster says, in his opinion, speaking of the possessory 
 rights of the Company : " Some years ago, during the contro- 
 versy respecting Lord Selkirk's settlement, the nature of 
 these possessory rights was examined and considered by very 
 eminent counsel in England, with Sir Samuel Romilly at their 
 head." (p. G,) 
 
 It is evident Mr. Webster falls into the material error of 
 assuming that the Company had the same power and rights 
 in Oregon Territory as at Lord Selkirk's settlement on the 
 lied River of the North. He confounds facts wholly distinct. 
 
 The Company claimed the Ued-river country as embraced 
 in their original charter, and they asserted as large a measure 
 of rights there, as in the regions lying immediately around 
 Baffin's bay. But even there the claim was disputed. But 
 they do not pretend to have had any such power on the 
 wes.; of the Rocky Mountains. This fundamental error on 
 Mr. Webster's part, arising, doubtless, from an imperfect ex- 
 amination of the subject, deprives iiis reasoning and his 
 opinion of all the authority it might otbcrwise derive from 
 his great name. 
 17 
 
130 
 
 Mr. Josiah Randall says: 
 
 "It is true, the 8d 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.'" (p. 17.) 
 
 We totally deny this proposition. It is not true. By ref- 
 erence to various treaties made by the United States, it will 
 be descovered that such is not the usual language employed 
 to protect titles. 
 
 In the treaty of 1794, between the United States and Great 
 Britain, it is provided as follows: 
 
 " It is agreed that British subjects who now hold lands in 
 the territories of the United States, and American citizens 
 who now hold lands in the dominions of His Majesty, shall con- 
 tinue to hold them according to the nature and tenure of their 
 respective estates and titles therein.'' 
 U. S. Laws, vol. 8, p. 122. 
 
 In the treaty of 1819, between the United States and Spain, 
 it is provided as follows : 
 
 "All the grants of land made before the 24th of January 
 1818, by His Catholic Majesty, or by his lawful authorities in 
 the said territories, shall be confirmed to the persons in pos- 
 session of the lands, to the same extent that the same grants 
 would be valid, if the territories had remained under the do- 
 minion of His Catholic Majesty." 
 U. S. Laws, vol. 8, p. 258. 
 
 The treaty between the United States and the Republic of 
 France, of 1803, provides : 
 
 "Art. 3. The inhabitants of the ceded territory sliall be 
 incorporated into the Union of the United States, and admitted 
 as soon as possible, according to the principles of the Federal 
 Constitution, to the enjoyment of all the rights, advantages, 
 and immrnities of citizens of the United States, and in the 
 meantime they shall be maintained and protected in the free 
 enjoyment of their liberty, pioperty, and the religion which 
 they profess." 
 
 U. S. Laws, vol, 8, p. 202. 
 
•y rights 
 ! used in 
 to be re- 
 
 Bj ref- 
 s, it will 
 m ployed 
 
 id Great 
 
 lands in 
 citizens 
 lall con- 
 of tlieir 
 
 I Spf 
 
 am, 
 
 January 
 'ities in 
 
 in pos- 
 ! grants 
 
 the do- 
 
 nblic of 
 
 hall be 
 Imitted 
 federal 
 ntages, 
 in the 
 he free 
 I which 
 
 
 131 
 
 The treaty between the United States 
 as loJlows ; 
 
 and Mexico provides 
 
 ing ^Iwcans'lol^ri V?Tl '^ '"''^ '^'"^' "^ belong- 
 spected.'' ' established there, shall be inviolably rl 
 
 U. S. Laws, vol. 9, p. 929. 
 
 riI?°of ".L"T T'\ '■ V'' "•""'^ "f '^*«' '" ^"f-^^^""" to the 
 
 torent J he treaty speaks of " possessory r,V|us " and nr„ 
 vkIcs tliat thcv shall bo rosBected T, „ / ' , ^ 
 
 ».■ by implieaiie,,. "" "'P'"'^'"' It confers no ftle ir. terms 
 
 The obll,,aUon to respect "the possessory rights " of the 
 Conjpany .„ p,.„ ,, „ ,„, ,^,.„,„^^ .^ J^^^^ of «. 
 
 cisely the same character in this tronfv .,a Jv. fi i i- • 
 -u,n„„ hy the Unite,, States in' th::^::! Ta" ledr 
 
 orti?e"n l""."' p"' "r "'^ '"'^"''"'^ "f '"'-ost in t J 
 
 ''posse ,0 ;:,:"" , ^^ *^"""'r^'' oxp,.essly limited to 
 possessory lights, whereas >n tho case of the other treaties 
 ere was no such limitation of tho ,uantu,n of interest. Z 
 
 « of the phrase "possessory rights- is peculiar to this trea.; 
 
 and of course hus a peculiar and appropriate signiBcation. 
 
 Hon. E. JI. Stanton, in his opinion, says : 
 
 "That exclu.sive possession and dominion, under sanctio,, „f 
 
 In this, Mr Stanton has gone far beyond the Company for 
 they .ly ... ^^.essory rights" in ......Jand^l'a::: 
 
 pos'^osViln'T tl' T'^"'"' '" ''" P""^ '' ^^^' -«^^ --J-ive 
 possession of the territory north of the Columbia was l.^allv 
 
 impossible. ;is tho linono« ^e ...„.i , ^ ^"^g^^^J 
 
 ly reseri 
 
 ot Ainoricar, citizens to use the territory H 
 
 nf oil ^4-1. _.. . . •'■ -^^ 
 
 of all other persons tl 
 
 le occu 
 
 ive been, as a practical question, in th 
 
 the rights 
 
 owever exclusive 
 
 pation of the Company mi<.ht 
 
 e country north of th( 
 
-no 
 
 Columbia, in ler^ul intendment it was not exclusive of Ameri- 
 can citizens, their right of occupation being expressly re- 
 served. The treaty of joint occupancy was also inconsistent 
 with any sucli exclusive occupation of a great geographical 
 division of the territory by the Hudson's Bay Company. 
 
 Some of these gentlemen allow themselves to be bctrayod 
 into singular accuracy of thought and expression, to say tho 
 least, when they affirm or argue that "possessory rights" and 
 "proprietary rights" arc equivalent phrases, and one implies 
 a title of the same dignity as the former. 
 
 We might as well argue that the licensee has the same 
 title as the licensor; tho tenant as the landlord; the pre- 
 emptor as the proprietor-sovereign of the public domain ; the 
 Indians, as the Government. 
 
 A party who is in possession of land as a mere trespasser, — 
 who has no pretence or color of title, as against an admitted 
 real owner of the land, — has, nevertheless, a possessory right, 
 upon which he can maintain suit against a junior trespasser. 
 {See Hubbard vs. Little, 9 Cushing, 475; Stearns vs, Hender- 
 sass, Ibid, p. 497.) But to protend that such admitted tres- 
 passer is, in fact or law, the true owner, would be absurd, and 
 mere confusion of language. 
 
 Title by possession does not necessarily follow on the pre- 
 sumption of a grant. 
 
 Stearns on Ileal Actions, 238. 
 
 Such errors as this, which ccnstitute the very lifo-blooil of 
 the most elaborate of the opinions under review, serve to 
 manifest the uncertainty of opinions, not judicial in their char- 
 acter, made up without contentious argument, and founded on 
 incomplete facts communicated by interested parties. 
 
 The completcst of all these opinions, that of Mr. Coxe, is 
 from beginning to end mere argument, on partial facts and 
 imperfect investigation of the law, and strongly illustrates 
 the inconclusiveness and unauth.oritativencss of the entire 
 collection. 
 
 Not one of these gentlemen could or would hi.ve rendered 
 such opinion with the present record before him. Any one of 
 
 
mn 
 
 fXC, IS 
 IS ill) (I 
 
 tratcs 
 lentire 
 
 iderccl 
 lone of 
 
 them, — Mr. Coxo, if living, Mr. Stanton now, — wo fool snre 
 if in aftor life called upon to consider tlio siiltjoct judicially, 
 would, in view of the adverse facts and ar^uuiciits which the 
 Government presents, overrule his har opinion as readily as 
 an upright judge corrects in hunc a hasty ruling at nisi pi ins, 
 or grants review or new trial on satisfactory exhibition of 
 error, and would decide this case, in spite of his printed btir 
 opinion, in favor of the United States, and against the Conn- 
 pan y. 
 
 At the date of those opinions, the legal profession in the 
 United States were not so conversant with foreign titles as 
 they had been at an earlier day, in the course of the adjudica- 
 tion of land claims in Louisiana and Florida; or as they have 
 since become by study of land-titles in California and New 
 Mexico. 
 
 The last class of titles have been pre-eminently instructive 
 to the profession. 
 
 We begin with the stipulation of the treaty of Guadalupe 
 Hidalgo, affirming protection and inviolability to property in 
 the territories ceded by the Mexican Republic to the United 
 States. 
 
 As to the killing of cattle, or trespasses on land, the Gov- 
 ernment afforded such protection in the shape of proper laws, 
 and courts of justice open to all for the redress of private 
 
 wrongs. 
 
 Such protection the Iluilson's Bay Company has been enti- 
 tled to in Oregon and Washino;ton; and if it has not in fact 
 been so protected, (which wo deny,) the injury it may thereby 
 have suffered is imputable to its neglect or gross ignorance 
 of its rights, or perhaps to its deliberate calculation to get 
 up a case against the Government. 
 
 In the legislation respecting land claims in California anu 
 New ^Mexico, and in the numerous adjudications thereon, we 
 have explored the difference between legal or complete titles, — 
 inchoate or equitable titles, — and mere possessory rights under 
 license, which are neither legal titles, nor equitable ones, but 
 only terminable temporary possession, expiring with the 
 license. In cases of the first and second class, our hiw reports 
 
134 
 
 abound; and cnsps of the third class arc not wanting: that of 
 Dellitrn rn. The United States, licreinheforc cited, being 
 strikingly similar to that of the HiuUon Bay Company. 
 
 VIII. Anthoi'itativc Ojnnions adverse to the Conipamj. 
 
 Wiiilo tlw» learned counsel for the Hudson's Bay Company 
 riclies on opinions contained in the pamphlet, in assertion of 
 the rights of the Company, he seems indisposed to bring for- 
 M'ard the very numerous opinions on the subject, which, at 
 one time or another, have appeared in England. Some of 
 these opinions were olTiciiil, rendered at the call of the 
 British (Jovernment : others were unoflicial, obtained by the 
 Company or its iidversai'ies, especially during the controversy 
 between the Hudson's Bay Company and the Northwest Com- 
 pany. 
 
 The people of the United States were made acquainted with 
 the desperate and not bloodless controversy between the Hud- 
 son's Bay Company and the Northwest Company by the Earl 
 of Selkirk's printed exposition of their respective claims, and 
 by the writings of Washington Irving, to say nothing of the 
 more exact knowledge of the controversy which jurists or leg- 
 islators acquired by the study of documents and of acts of 
 Parliament. (See Mr. Cushing's Report, 25th Congress, 3d 
 Session, vol. 1, No. 101.) 
 
 AVe refer to tlie controversy as historical matter, by way of 
 preface to the following remarkable statement made by Mr. 
 Edward Ellicc, while testifying, June 3, 1857, before the com- 
 mittee of the House of Commons, appointed to consider "the 
 state of those British possessions in North America, which are 
 under the administration of the Hudson's Bay Company, or 
 over which they possess a license to trade;" which statement 
 we quote as follows : 
 
 "5822. The Hudson's Bay Company are incorporated under 
 a charter, I believe ? " 
 
 "Tiiey are incorporated under a charter." 
 
 "5823. What rights do you conceive that charter to give 
 them? " 
 
way of 
 y Mr. 
 e com- 
 • " the 
 ch are 
 Iny, or 
 [ement 
 
 under 
 
 give 
 
 185 
 
 "I conceive that charter to <^ivo the rights exfircsscd in it ; 
 some of thoni may l)o doubtful. I ouglit to h(^ able to (.'.\j)ros9 
 a tolerably fair opinion iipon this subject, since I havcj takiMj 
 the o|iinion of every lawyer against the ('oinpsuiy when 1 was 
 opposed to them, and for the (Jompany since \ have been coii- 
 nccteil with them. We have tlie opinions of Lord Miinsrudd, 
 Sir Duilley Ryder, Sir llichard Lloyd, Lord Krskine, (Jibbs, 
 Uomilly, Cruise, IJell, Scarlett, llolroyd ; and the law ollicers 
 have been consulted upon every occasion by the (Ndonial Of- 
 fice when this question has come under discussion; and I think 
 the universal opinion, without an exception, of these eminent 
 lawyers, is, that the proprietary rights of the Company cannot 
 be dis[)uted. Some of these opinions maintain the right of the 
 Crown, at the time of the charter, to give an exclusive right 
 to trade, founded upon the former decision of 'The East India 
 Company vs. Sands,' by Lord Jelfrey. Other lawyers are 
 doubtful upon the poirit. l»ut it is scarcely necessary to in- 
 quire whether the Crown had the power or not, since, if the 
 Crown had the power, it has not given the Company any means 
 of enforcing its rights: we cannot proceed to seize or confis- 
 cate: at least I should think a lawyer would be in some dilli- 
 culty before he should advise the Company to take that course: 
 therefore I hold that to be an extremely doubtful question. 
 But none of these eminent lawyers, and no lawyer whose opin- 
 ion I have ever heard quoted either for or against the Com- 
 pany, or taken either for or against them, have expressed the 
 least doubt as to the proprietary rights granted under the 
 charter." 
 
 '•5824. By 'proprietary rights,' you mean the rights of pos- 
 sessing the soil, as distinguished from the exclusive right of 
 trade 'i 
 
 "I mean the same riglits which were granted to other [U'o- 
 prietors ; honorable members are aware that this is the last 
 proprietary government in existence. There were, I forget 
 how many, proprietary governments in AmericA ; Massachu- 
 setts, Pennsylvania, and various others ; but this is the onlv 
 case remaining, of a proprietary right, which has not been, 
 somehow or other, either purchased, or amalgamated with the 
 general rights of some one of the colonics in America." 
 
 Report of Committee on Hudson's Bay Company, p. 
 827. 
 Thus we see, that if, in the present case, the Company 
 needed bar opinions, they could have selected among names 
 
136 
 
 V 
 
 ml 
 
 the highest in the jurisprudential annals of England, from Lord 
 Mansfield's time, including llyder, Erskine, Gibbs, Romilly, 
 down to the time of Lord Abinger. 
 
 Why does the learned counsel f.jv the Coni|)any pass by all 
 these persons, and settle down lor authority upon some equally 
 respectable certainly, bu* not equally authoritative lawyer, 
 like Mr. George M. Bil 'o? (Mr. Day's Argument.) 
 
 To tliis pertinent question there can be but one pertinent 
 response. The learned counsel had bccoaie aware that, ac- 
 cording to tlie whole current of legal opinion in England, even 
 if the Hudson's Bay Company possessed original validity of 
 incorporation, — which is very doubtful, since the firmest basis 
 of the Company's life is the fact that it lives, — still the sum 
 total of its rights, within its chartered limits, is nothing more 
 nor less than proprietary rights in land. 
 
 Such was the conclusion of the Attorney and Solicitor Gen- 
 ral for the time being, when, in June, 1857, the whole question 
 was referred to them by the Crown, and they examined it in 
 the liglit of the opinions of all their predecessors back to the 
 day of Lord Mansfield. 
 
 "NVe quote from their opinion as follows : 
 
 " The questions of the validity and construction of the 
 Hudson's Uay Company's charter cannot be considered apart 
 from tlie enjoyment that has been had under it during nearly 
 two centuries, and the recognition made of the rights of the 
 Company in various acts both of the Government and the 
 Legislature 
 
 ''Nothing could be more unjust, or more opposed to the 
 spirit of our law, than to try this charter as a thing of yester- 
 day, upon the principles wl'ich miijht be deemed applicable to 
 it, if it had been granted within the last ten or twenty years. 
 
 " These observations, however, must be considered as lim- 
 ited in their application to the territorial rights of the Com- 
 pany under the charter, and to the necessary incidents or 
 consefiuences of the territorial ownership. They do not ex- 
 tend to the monopoly of trade, (save as a territorial owner- 
 sl'.ip justifies the exclusion of intruders,) or to tlic I'ight of au 
 exclusive administration of ju.:tice. ''' ''' * 
 
 "In our opinion, the Crown could not now, with justice, 
 
]?.7 
 
 of the 
 
 apart 
 
 nearly 
 
 of the 
 
 d the 
 
 years. 
 IS liin- 
 
 Com- 
 liits or 
 
 )t cx- 
 )\vner- 
 
 of au 
 
 listice 
 
 raise the question of the general validity of the charter; but 
 * '•' '•' on every le^jal principle, the Couipany's ter- 
 
 ritorial ownership of the lands granted, and the rights neces- 
 sarily incidental thereto, (as, for example, the right of ex- 
 
 )f 
 
 clmdng trom tlioir territory persons acting in violation o 
 their regulations,) ought to be deemed lo be valid. 
 
 "But, with respect to any rights of government, taxation, 
 exclusive administration of justice, or exclusive trade other- 
 
 wise than as a consequence or the right ot ownership ot the 
 land, such rights could not be legally insisted on by tlie Hud- 
 son's Bav Company as havinsr been lejiallv sranted to them 
 by the Crown." -^^ * * * • * 
 
 The opinion of the Attorney and Solicitor Gen'-.ral, from 
 which the above extracts are made, appears in thj Appendix 
 to the Report of the House of Commons. It 's dated July, 
 1857. 
 
 Thus we perceive that the conclusion, which Mr. EUice ar- 
 rived at, did but anticipate the conclusion of the Attorney 
 and Solicitor General. 
 
 Now, the committee, in their report, clearly show the nature 
 of the rights of the Hudson's Bay Company, as follows: 
 
 " The territory over which the Company now exercise rights 
 is of three descriptions — 
 
 1st. The land held by charter, or Rupert's Land ; 
 2d. The land held by license, or the Indian te»'"'tory; 
 3d. Vancouver's island." 
 
 It is the second head of rights, namely, the land held by 
 license, or the Indian territory, in which is comprehended all 
 right, of any name or nature, which the Hudson's Bay Company 
 ever possessed in Oregon and ^V.^shington.* 
 
 Now, it conclusively appears, not only by the express tenor 
 of the committee's report, but by the whole body of its evi- 
 dence, and of the documents appended, that, in the so-called 
 Indian territory, the Company h :ld nothing but license to 
 trade; that this license, granted in 1838, was to expire by its 
 
 *\Ve reprint the opinion of the Altorne}' and Solicitor General, above referred 
 to, and also the committee's lleport,, in the ^iiipplement and Appendix. 
 
 18 
 
138 
 
 own limitation in twenty-one years; and that, whatever tlie 
 Company ditl, wliatcver it acquired, and whutovcr it held, it 
 did, acquired, and hchl soltdy and exclusively in virtue of its 
 terminable license to trade, as granted by the British Crown. 
 
 It requires, we apprehend, only one step more to complete 
 the denn^.istration of the true character of the rights of the 
 Company in Oregon and AVashiiigton, namely, to exhibit the 
 revocation of its license to trade, and show the acts of illegal- 
 ity and usurpation on the part of the Company, which com- 
 pelled and hastened the revocation of its license. 
 
 The revocation is a Royal Sigti Manual, dated September 
 2, 1858. (Inserted in U. S. Misc. Ev., p. 888.) 
 
 Less than two months prior to the date of this Royal Sign 
 Manual, it became the duty of the Minister for the Colonies. 
 Sir Edward Bulwer Lytton, to adilrcss to the commissioned 
 governor of Vancouver island, an<l governor dc facto of Brit- 
 ish Columbia, a despatch, containing some brief instructions 
 on general matters, but chiefly devoted to commanding that 
 governor, — who, as it happened, was the Sir James Douglas of 
 the Hudson's Bay Company, whose evidence we have in this 
 record, — to stop the scandalous abuses of power exercised 
 under his eye by that Company. 
 
 We quote as follows: 
 
 "But I must distinctly warn you against using the powers 
 hereby intrusted to you in maintenance of the interests of the 
 Hudson's Bay Company in the territory. 
 
 "The Company is entitled, under its existing license, to the 
 exclusive trade with the Indians, and possesses no other right 
 or privilege whatever. 
 
 "It is, therefore, contrary to law, and equally contrary to 
 the distinct instructions which I have to convey to you, to ex- 
 clude any class of persons from the territory, or to prevent 
 any importation of goods into it, on the ground of a|»[)roliendcd 
 interference with this monopoly; still more, to make any gov- 
 ernmental regulations subservient to the revenues or interests 
 of the Company. 
 
 "1 am compelled, therefore, to disapprove and to disallow, 
 if still in force, the proclamation of which your despatch 
 
tllQ 
 
 Iright 
 
 ry to 
 |o cx- 
 n'cnt 
 Hided 
 gov- 
 [rests 
 
 jllow, 
 )atch 
 
 139 
 
 transmitted a copy. To fit out boats and vessels to enter 
 Frazer's river for trade, is 'no infriiiifomcnt of the Hudson's 
 i>;iy Company,' as that proclamation terms it. Such infringe- 
 ment only couiinonces when any trading with the Indians is 
 attempted, and no steps can rightfully be taken to put a stop 
 to legal acts of this description, on the ground that they may 
 bo intended for ulterior purposes, infringing on private rights. 
 For the same reason, to re([uire a 'license from the Hudson's 
 Bay Company' of persons landing in the territory, is alto- 
 gether uiijustifiablo. 
 
 "I am obliged, for the same reason, to disapprove of the 
 terms which you have proposed to the Pacific Mail Company. 
 They ought not to be put under terms to 'carry the Com- 
 pany's goods and no other;' nor ought they to be prevented 
 from carrying persons not furnished with a gold-miner's license. 
 Such license can be properly required of intending diggers 
 on the ground, but not of persons merel}'' seeking to land on 
 the territory. Still less have the Hudson's Bay Company any 
 right whatever to '^xact from passengers any fee or head- 
 money, by w'ay, as you term it, of 'compensation.' 
 
 "Siiould, therefore, the Pacific Mail Company have assented 
 to these terms, I must, nevertheless, require their being altered, 
 according to the tenor of these instructions, for the future." 
 U. S. Misc. Ev., p. 280. 
 
 Wo trust that there will be no further occasion for us to 
 recur to the absurd and utterly groundless pretension of the 
 Hudson's Bay Company, to having any granted rights in 
 Oregon or Washington, beyond the naked license of trade 
 ■with Indians of prescribed and definite duration. 
 
 IX. Parliamentarij investigation of the Company. 
 
 The Hudson's Bay Company, it is now distinctly perceived, 
 is a corporation invested with proprietary rights in British 
 America, in virtue of a charter from the Crown, analogous to 
 the charter granted in the same reign to the Duke of Albe- 
 marle and his associates, and of the charter granted in previ- 
 ous reigns to the Virginia Company. 
 
 But these last-mentioned Companies, like the great propri- 
 etary rights of William Penn, of Oglethorpe, and of Lord 
 Baltimore, were designed, both by the Crown and the grantees, 
 
140 
 
 to be enterprises of colonization, and we apprehend that on 
 the part of the Crown, at least, such was one of the supposed 
 objects of the Hudson's Bay Company. 
 
 That Company, however, either ascertained or imagined 
 that it could derive more profit from devoting the Crown lands 
 it had thus acquired to the prosecution of the fur-trade. 
 
 But the field for the fur-trade is the uninhabited Avastes of 
 the earth, or, at any rate, those portions of the earth, which 
 are but imperfectly occupied by human beings in the very 
 primitive stage of humanity, savages themselves, and the fit 
 companions of the wild beasts, which, in common with them, 
 wander over, rather than possess, the primeval wildernesses. 
 
 In order, therefore, to execute its projects, it was necessary 
 for the Company, not to cultivate the lands granted to them, 
 but to cultivate the wild beasts thereon ; not to colonize, but 
 to exclude colonization: in a word, to maintain their possess- 
 ions in the condition of a desert, the Indians of which should 
 be the hunters and thf servants of the Company. 
 
 And thus it was that the possessions of the Hudson's Bay 
 Company have continued to be, from that day to this, a blank 
 on the map of America. 
 
 In that vast, uninhabited region, the Hudson's Bay Com- 
 pany, while they were but the proprietors of land, possesssing 
 at least no exclusive rights of navigation, or of interior trade, 
 yet contrived to keep out population, and so, to seem to be 
 sovereign lords of the territory, invested with prerogative 
 powers. 
 
 But in truth they possessed no such powers. To pretend 
 to possess them, — to exercise them, in fact, — was mere usurpa- 
 tion ; just such as they undertook in British Columbia at a 
 subsequent day, and on account of which they received, as we 
 have seen, such a verte semonce from the British Government, 
 promptly followed by the clipping of their wings and depriva- 
 tion of the further poAver of mischief by the due application 
 of a lloyal Sign Manual. 
 
 When at length the eyes of Great Britain and of the 
 United States came to be turned toward the /ast unoccupied 
 region of this continent, in and west of the Rocky Mountains, 
 
141 
 
 itcnd 
 |urpa- 
 
 at a 
 LS we 
 bent, 
 [riva- 
 
 ition 
 
 the 
 ipied 
 lains, 
 
 a large part of that region was in dispute between the two 
 Governnient.s. 
 
 In tlle^^e circiuiistanccs, the liritish (lovornineiit adopted a 
 policy, which, whether wise or not, was at least sagacious and 
 far-sighted in the sense of the object which Great Ijritain had 
 in view, namely, the ultimate appropriation of the whole, or 
 of as large a part as possible, of that magnificent future em- 
 pire on the shores of the Pacific sea. The JJritish Govern- 
 ment granted to the Hudson's Bay Company a license, dated 
 May 30, 1838, "for the exclusive privilege of trading with 
 the Indians in all such parts of Nortii America, to the north- 
 ward and to the westward of the lands and territories belong- 
 ing to the United States of America, as should not form part 
 of any of our provinces in North xVmerica, or of any lands 
 or territories belonti;innr to the said United States of America 
 or to' any European Government, State, or Power." 
 U. S. Misc. Ev., p. 388. 
 
 Here, indeed, was no charter of proprietorship, nor even of 
 colonization; the Company did not receive 'grant of a single 
 rood of land, and still less of a single atom of running water; 
 nor of any exclusive right to the use of earth, water, light, 
 or air; nor any rights of navigation; but the sole and single 
 right to exclusive trade Avith Indians. Nevertheless, it was a 
 charter of licensed usurpation and pillage, in the whole of the 
 described region of North America. 
 
 But what was the territory? What portion of America did 
 the license describe? 
 
 All the world knows, — it is undenied and undeniable, — that 
 the territory described is that which by treaty between Great 
 Britain and the United States had been previously neutralized 
 by the two Governments, and in consideration of which it had 
 been agreed between them, that, whilst open to resitlence on 
 the part of the subjects of both, it should not be exclusively 
 occupied by either, nor its land be susceptible of individual 
 appropriation. 
 
 The British Government well anticipated that the Company 
 would scatter its posts over all that vast region ; and that it 
 
142 
 
 K; 
 
 I 
 
 n 
 
 would practicallj, though unlawfully, to the extent of its 
 moans, o.vcliiile o(jl()iiiz!itio)i, and ovon comnicrco, on tlio part 
 of citizens of the United States. 
 
 And so it proved, to the consequence of so much indigna- 
 tion in the United States, as witliin a very few years to bring 
 the two Governments to the verv verueof war, which was only 
 averted by the conclusion of the treaty, the discussion of 
 which constitutes th.e staple of the j)resent Argument. 
 
 Already it has been sullieiently demonstrated by us that the 
 Hudson's Bay Company, entering Oregon as a special licensee 
 only, coulil not acquire, and did not acquire, any proprietary 
 rights there whatsoever. Presumptuous as the Company 
 always has been, it did not at that time pretend to any proprlc- 
 tarij rights, but only to certain pos-'fessor// rights, the same 
 which are now in liti<j;ation before the honorable Coramis- 
 sioners. 
 
 Jjut the Hudson's Bay Company could not suppress its desire 
 to do something in the way of the usurpation of land-titles : in 
 the gratification of which desire, it proceeded at different times, 
 between April 27, 18-1:6, and April 5, 18 iO, to cause its ser- 
 vants to enter donation claims in the territory for the benefit 
 of the Piiget's Sound Company, (see U. S. Misc. Ev., p. 804, 
 where eighteen of these fraudulent transactions are recorded.) 
 Dr. Tolmie was himself a claimant in one of the interests; 
 and the party participant in the transfer of them all to the 
 Company. And thus the Hudson's Bay Company assumes to 
 acquire and hold proprietary rights through the medium of its 
 outgrowth, branch, or parasite, the I'uget's Sound Company, 
 which it could not acquire and hohl of itself: as if, by agree- 
 ment among its members, and a little trickery with its servants, 
 it could make a creature superior to its creator, which is 
 contrary to Holy Writ. 
 
 Meanwhile, as time passed on, the people of Great Britain, 
 with their singular aptitude for successful colonization, and 
 the people of Canada, with their natural solicitude for the 
 development of all the resources of British America, of which 
 they constitute such a principal part, began to grow restive at 
 the perception and the reflection of so vast a region of British 
 
143 
 
 'ants, 
 ich is 
 
 jitain, 
 I, and 
 |r the 
 ivhich 
 Ivc at 
 'itish 
 
 America being maintained century after century in the state 
 of wiMcrncHs, for the single purpose of gatliering potty divi- 
 diMids for the Ijcnofit of the Hudson's ]>;iy Company. 
 
 ]Ic'reui)oii folhnved that agitation of the suhjcct in Enghvnd 
 and Canada, of whicli the evidences appear in this case. 
 
 Tlie imineiliate result was a parliamentary in(|uiry, con- 
 ducterl by a committee, among whose names we find those of 
 such eminent persons as Mr. Secretary Laboucliere, Lord 
 John Russell, Lord Stanley, Mr. Edward Ellioe, Viscount 
 Sandon, Sir John Packington, Mr. (jr lad stone, Mr. Roebuck, 
 ^Ir. Lowe, and Viscount (Jodericli. 
 
 Their report settled the fate of the Hudson's Bay Company. 
 Thenceforth it was shorn of all power in being stripped of the 
 mystery which had so long shrouded its rights and its acts. 
 This report is printed in the ^Vppendix. 
 
 The revocation of its extra territorial license by Sign Man- 
 ual followed speedily thereafter. 
 
 Ceasing to be a power, the Company was metamorphosed 
 into a common-place denizen of the stock exchange, by the 
 skillful manipulations of the International Financial Society. 
 
 Its destiny now is, we presume, to surrender ere long its 
 rights to the Crown, in order that the immense territory, which 
 it has for so long time used and abused, may at length be 
 opened to colonization as a province. 
 
 Its younger sister, the Russian American Company, which 
 liad for so many years divided with it the sway of the north- 
 ern parts of the continent of North America, has already 
 sunk under causes of decay which are common to both. These 
 causes are well explained by M. Vattemare, in the " Revue 
 Contemporaine," as consisting of the persistent endeavor of 
 the two Companies to continue their fur-trade monopoly, in 
 despite of their respective Governments. 
 
 See extracts from the article of M. Vattemare in the 
 Appendix. 
 
 We suppose the Hudson's Ray Company only awaits the 
 termination of this cause, to lie down and expire by the side 
 of the Russian American Company. liequieneat in pace. 
 
144 
 
 X. Exceptions to Evidence. 
 
 In the course of the examination of witnesses on both sides, 
 exceptiotis were frequently made and noted, either to the 
 matter or the form of interrogatories, or to tiie substance of 
 answers; in some cases, it may be, with, and in some cases 
 ■without, good and sufficient cause. 
 
 We find, on revising the testimony, that the discussion of 
 these exceptions, whether for the purpr o of defending the 
 legality of questions put by the Government, or of answers 
 received to questions by it, or for maintaining objections taken 
 by it tc questions or answers propounded for the Company, 
 would require great labor, consume considerable time, and 
 occupy much space, but would not carry with it any conse- 
 quences of moment, either to the United States or to the 
 Company. 
 
 To take evidence by depositions is in general a tedious and 
 vexatious task, .alike to counsel, to witnesses, and to commis- 
 sioner, and especially to counsel, whose patience is prone to 
 give way under such unfavorable circumstances. 
 
 Thus it happens that while both parties are seeking, in good 
 faith, to bring out, in a competent form, the facts it deems 
 material, yet each fails to do so, or conceives that the other 
 fails to do so, and exceptions multiply. 
 
 Of all this the Commissioners will judge. Questions or 
 answers, which they deem illegal, — statements by witnesses, 
 which may appear to be incompetent, for want of knowledge, 
 or as being mere opinions in the place of facts, — the Commis- 
 sioners will reject or disregard. 
 
 As to all the matters of controversy, there is so large a 
 body of evidence on both sides, and so much of it is merely 
 cumulative, and there is so much of unexceptionable evidence 
 on main points, that neither party incurs any hazard by the 
 reception or rejection of any particular parcel of testimony. 
 
 Besides which, whilst, in a cause like this, great liberality in 
 the reception of evidence seems to be desirable, so also, with 
 a tribunal like this, any evidence, which either party in good 
 
145 
 
 K>s or 
 esses, 
 ledge, 
 
 immis- 
 
 Irge a 
 
 lerely 
 
 idence 
 
 ly the 
 
 lony. 
 
 |ityin 
 
 with 
 
 [good 
 
 faith tliinks itnportant to him, may well be submitted to the 
 court. 
 
 If disposed to criticize evidence in matter or form, we shouhl 
 move to strilce out the entire mass of opinions for the Com- 
 pany on tlie subject of values, seeing that such opinions are 
 but secondary evidence in the absence of book-accounts ; that 
 few of the witnesses, whose opinions are thus put in, have any 
 pretension to be deemed experts ; and that the Company, while 
 confessing that it has in its possession the original books of 
 cost and expenditure, pertinaciously refuses to produce them, 
 and suppresses the true and only competent evidence of the 
 controverted facts. 
 
 We have )»estowcd some reflections on this topic, in the 
 proper place; and we now here, in this relation, adjure the 
 Commissioners to reject and discard every answer of the Com- 
 pany's witnesses, every statement or document, which under- 
 takes to prove value as opinion merely, without being controlled 
 by the proper accounts of expenditure. 
 
 All these observations apply to the documents filed by the 
 Company, as well as to its oral testimony. Counsel on both 
 sides have agreed not to exact technical proof of the authen- 
 ticity of documents, in the absence of any special cause of 
 suspicion : sul)ject to which understanding, we consign the 
 whole matter to the discretion and judgment of the Commis- 
 sioners. 
 
 XI. Photographs, 3Iaps, and Plates. 
 
 The United States, in consideration of the highly ornamen- 
 tal descriptions of the witnesses of the Hudson's Bay Company, 
 in speaking of the structures at some of their posts, and in 
 consideration of the exair^erated value attributed to the same, 
 have procured a numljer of photographs of such structures, 
 including, of course, views more or less exiensive of the adja- 
 cent country. 
 
 Such representations of objects are infinitely more instruct- 
 ive and satisfactory than the most perfect oral description. 
 Horace, willi his accustomed curiosa fdicitas, well says : 
 
 19 
 
 Segnius irritant anitnos clemissa per aures 
 Quam qufB oculis subjecta fidelibus. 
 
14G 
 
 Who, in purchasinf]; an extensive farm and favm-liouso, or 
 a costl}' cdKice, at a very lav^c cstiniattMl pricu', wouM be con- 
 tent to buy on the faith of the extravagant (IcscriptioM of an 
 auctioneer or other agent of the vendor? If the ])roposed 
 vendee cannot, by liinisclf or agent, visit the property 
 to be sold, the next best thing fur him is to inspect piioto- 
 graphs of it, in which the object paints itself with miraculous 
 precision and certainty, and in a form admitting of indefinite 
 multiplication of copies. And such is the information regard- 
 ing many of the structures of the Company, which wc propose 
 to submit to the Commissioners. 
 
 The photograph, marked United States Photographs No. 
 3, exhibits a direct view of the much-vaunted buildings at 
 Fort Vancouver, for the better intelligence of which, com- 
 parison should be had with United States Photographs No. 
 3i, representing the camp of the British Boundary Commis- 
 sioners at Fort Vancouver. 
 
 The photograph entitled United States Photographs No. G 
 presents a bird's-eye view of Fort A^ancouver, copieil from a 
 lithograph in Pacific Railroad Reports, vol. 12, Pt. I. 
 
 By means of these photograpiis, it is plain to see not only 
 the buildings themselves, but the enclosed grounds, and the 
 relation of the whole to the river Columbia. 
 
 Photographs Nos. 3 and 3J- are verified by General Alvord. 
 No. 3, being the northeast corner of the stockade viewed 
 from the inside, and embracing the officers' quarters at the 
 one side and that of the servants at the other, constitutes the 
 most favorable exhibition possible of the best of the inhabited 
 structures at Fort Vancouver. U. S. Ev., Pt. II, p. 352. 
 
 No. 3|, which the Boundary Commissioners occupied for a 
 time, represents the northwest corner of tlie stockade, em- 
 bracing the principal store, and here, of course, we have a 
 representation of the best of the commercial structures. 
 (General Alvord, ibidem.) 
 
 These two photographs are also botli identified by G. Gibbs, 
 (U. S. Ev., Pt. II, pp. 41-2 and 521.) . 
 
 It needs only to cast the most cursory glance at these edi- 
 fices, as thus photographed, to see bow false are the descriptions 
 
147 
 
 th( 
 
 'ord. 
 
 ;\ve(l 
 tlic 
 the 
 
 Ited 
 
 [or a 
 
 om- 
 
 Ive a 
 
 ires. 
 
 bbs 
 
 [Clll- 
 
 iions 
 
 and estimations of tlic officors and servants of the Company 
 ill this respect, and how just and correct are tiiosc of the 
 witnesses for the United States. 
 
 In No. G we discern not only tlio stochade and its enclosed 
 edifices near the river, and the scattered huts and small houses 
 further hack from the river, but also the important mission 
 buildings, and other small dwellings on the edge of the woods 
 — these dwellings belong in part to private persons — by the 
 inspection of which we shall see not only the orditiary char- 
 acter of the structures of the Company, but also shall gather 
 some idea of the visionary city of Vancouver. 
 
 Photograph No. 1 represents that which is called in the 
 testimony a "church," but which is in fact only a very hum- 
 ble mission-house, at the post of Kootenay. 
 
 This photograph is identified by A. and C. T. Gardner. (U. 
 S. Ev., rt. ir, p. 320 and 322,) by Hudson, {Ibid, p. 340,) by 
 Gibbs, [Ibid, p. 407,) and by Alden, {Ibid, p. 852.) 
 
 This building, as we plainly see by the photographs, con- 
 sists on the sides of six tiers of unhewn logs cut in the neigh- 
 boring forest, and is testified to be double the size of the only 
 inhabited building at the post belonging to the Com any, that 
 occupied by Linklator. 
 
 Photograph No. 2 represents wliatever there is of most 
 value in the structures of the Company at the Fort denomi- 
 nated Fort Colvile. It is identified by G. C. Gardner, (U. 
 S. Ev., Pt. II, pp. 194, 197-90,) and by A. J. Cain, {Ibid, pp. 
 225 and 230 ) 
 
 Photograph No. 3, which is a view from Fort Colvile, look- 
 inji across the Columbia, affords instruction reixarditij; the 
 face of the country, as well as the ordinary style of buildings 
 therein at the time under consideration. 
 
 Photograph No. 9 is a representation of the Company's 
 mill near Fort Colvile, the sight of which suffices to dispel 
 the illusory valuations thereof made by the oflTicers and ser- 
 vants of the Company. It is copied from the Pacific Railroad 
 Reports, vol. 12, Pt. I. 
 
 Photograph No. 4 consists of an exterior and interior view 
 of Fort Hall, copied from the report of Major Cross, U. S. A., 
 
148 
 
 to the Quartermaster (icneral, contained in the latter's re- 
 port of .luno ."jOtli, 1850, as communicated to C!')M;L;re.ss. 
 
 I'liotograph No. a C(jnsi.sts in like manner of views of tlio 
 interior and exterior of Fort lioise, copied from pliotographs 
 in the last above mentioned report. 
 
 Each of these photographs serves to contradict unanswer- 
 ably the testimony of the agents of the Company respecting 
 the same, and to substantiate that of the witnesses for the 
 United States. 
 
 Photograph No. 7 represents Fort Walla-Walla, copied from 
 the above-cited volume of the Pacific Railroad Reports. 
 
 Great effort was made by the counsel for the Hudson's Bay 
 Company, who cross-examined witnesses of the United States 
 on the subject of Walla-Walla, to endeavor to make out won- 
 derful value, both of buildings and of site. This photograph 
 fully substantiates the testimony of the United States. 
 
 Finally, we have, in Photograph No. 8, a correct exhibition 
 of the adobe structures at Fort Okanagan, copied from the 
 same volume of Railroad Reports. For these mud-hovels, the 
 Company claims i;2,500, while the witnesses of the United 
 States testify that they are not worth more than $500. That 
 is to say, the Company claims for these buildings about 
 twenty-five times their value, as represented by witnesses of 
 the United States. 
 
 By looking at this photograph, the Commissioners have 
 opportunity to perceive not only the extravagant exaggera- 
 tion of the claim founded on Fort Okanagan, but also, infer- 
 entially, in regard to all the other posts of the Company. 
 
 The Government also files a number of maps and plats. 
 
 No. 1 is a copy of the preliminary Coast Survey chart of 
 the mouth of the river Columbia. Here we see the position 
 of Astoria, as referred to in various parts of the evidence; 
 also. Point Adams; also, Cape Disappointment. 
 
 This map is verified, and the notable points upon it are in- 
 dicated by W. B. McMurtrie. (U. S. Ev., Pt. II, p. 371.) 
 
 No. 5 is a special map of a portion of the mouth of the 
 river, with particular reference to Cape Disappointment, pre- 
 pared by Capt. Van Buren, from authorities in the Engineer 
 
149 
 
 tUo 
 
 •t of 
 lition 
 |nce ; 
 
 Ic in- 
 
 1) 
 
 the 
 
 ipre- 
 ineer 
 
 Dppnrttnont. The basis of it is ii survey tnado by Mr. Ogden, 
 cliit'l' t'aclMi- of tli(> IliulsMii's Day Coiiiftany. 
 
 Also, the objects \\\)i)U it are fully explained by Mv. Mc- 
 jSIurtrie, (U. S. Ev., Vt. II, p. :J71,) and by Capt. Van JUiren, 
 (U. S. Ev., Misc., p. o<J7.) Seo also W. Uib.son, L". IS. Ev., 
 
 Pt. Ill, )>. niT. 
 
 No. 11 is a copy of the Coast Survey rcconnoissance of 
 Steilacooni harbor. It is the subject of evidence and expla- 
 nation by Mr. McMurtrie of the Coast Survey in U. S. I'uget 
 S. Ev., p. :20G. 
 
 Nos. 2 and o are land olTice maps of Oregon and of Wash- 
 ington, duly certified by the Commissioner of I'ulilic Lands. 
 These maps, while serving to siiow the {)rogrcss of public sur- 
 veys to the time of their respective dates, are also convenient 
 for consultation in reference to many of the localities men- 
 tioned in the evidence before the Commissioners. 
 
 No. G is a plat cojdetl from files in the Land Office certified 
 by the Commissionei", and representing the Hudson's Bay Coui- 
 pany's claim at Fort Vancouver, as described in a letter from 
 chief factor Ballenden, in 18.32, to Mr. Preston, surveyor 
 general of the territory of Oregon. 
 
 This map requires to be consulted in studying the question 
 •whether of the pretended or of the true limits of the claim of 
 the Hudson's Bay Company. 
 
 The map is of particular interest in controlling the evid- 
 ence of Mr. Mactavish. (See the letter of acting Commissioner 
 Whitney to Surveyor General Tilton. U. S. Miss. Ev., p. 2Go.) 
 
 No. 8 is a map of the military department of Oregon, pre- 
 pared at the VV'ar Department, and will be convenient to the 
 Commissioners in aftbrding a general view of the geography 
 of the entir*^* region of country concerned with the enquiries 
 of the Commission. 
 
 No. 10 is a British map of the same region of country as 
 the preceding, copied from one of the Parliamentary Blue 
 Books. 
 
 Portions of this map are obscured by the colored lines upon 
 the original, which, in the process of transfer by sunliirht. 
 have been converted into deep dark-colored lines. The 
 
150 
 
 strai<:;ht line is but the boundary-line of the 49th parallel of 
 latitude, and the curve-lines are delineations of the eoasts of 
 the ocean, bays, and straits. 
 
 The particular utility of this map is in illustrating the evi- 
 dence respecting the position of Fort Colvile, and the Flat- 
 Head and Kootenay Fo- s. 
 
 Finally, we have two maps to illustrate the relation of the 
 public reserve at Fort Vancouver to the Hudson's Bay 
 Company. 
 
 Xo. 4 was drawn by Lieut. Stuart, in 1850. It is explana- 
 tory of a notice declaring the reservation, issued at the time 
 by Col. Loring, commanding the military department. (See 
 U. S. Misc. Ev., 308.) 
 
 The reservation, be it observe 1, saves all the rights of the 
 Hudson's Uay Company. 
 
 No. 2 is the military reservation at the same place, as sur- 
 vey cvl in 185l>, under direction of Gen. Harney. 
 
 In order to the better understanding of this map, it is woU 
 to compare with it the photograph No. 0, exhibiting a bird's- 
 eye view of Fort Vancouver. 
 
 (F.) — Conclusion. 
 
 Having thus dismissed at length all such questions of fact, 
 or of law, as it seemed necessary, in the interest of tiie United 
 States, to considei, it only remaitis for us, in tlie way of re- 
 trospect, or rcsiunc, to state the propositions which, in one 
 form or another, constitute the basis of this ar<;utnent. 
 
 1. The Hudson's Bay Company is the chartered proprietor 
 of the territory of Rupert's Lan<l., 
 
 2. Within its chartered limits, the Company was invested 
 in fact, though by doubtful legality, with the quality of owner 
 of the soil, including such proprietary rights as appertain to 
 a grantee under the Crown. 
 
 3. Within its chartered limits, even, however, the C'^mpanj 
 does not possess the functions of sovereignty, or prerogative 
 powers of <any deicrirtion. 
 
 4. Whether or not, within those limits, the Company enjoys 
 
F fact, 
 :iitc(l 
 of ro- 
 ll one 
 
 )vietor 
 
 "osted 
 lowlier 
 lain to 
 
 151 
 
 any rirrhts of exclusive trade, — and if perchance, by letter of 
 charter, it holds any such, — it is destitute of any legnl means 
 for their enforcement, and they cannot be rightfully main- 
 tained. 
 
 5. These arc the ancient rights of the Company; but by 
 recent especial grant, it exercises or possesses some particular 
 rights, immaterial here, within British Columbia. 
 
 G. This Company, in the year 1888, while the territory now 
 constituted as the Htate of Oregon and territory of Vv^ashington, 
 •was in litigation between <ireat JJritain and the United States, 
 entered therein, under and by virtue of a license from the 
 British Crown for the exclusive trade with the Indians thereof. 
 
 7. This license by the British Crown was, in spirit and effect, 
 if not intention, an act of semi-hostility toward the United 
 States, being contrary to the true construction of the conven- 
 tion rejiulatini; the respective ad ('nterim ri -hts of the two 
 Powers in the disputed territoi-y. 
 
 8. Jjut the license, in so far as it professed to grant privi- 
 leges of exclusive trade with Indians, could only operate against 
 British subjects, and was nugatory as respects citizens of the 
 United States. 
 
 9. The license did not profess to grant to the Company any 
 exclusive v\<A\t of navi^atinn; the waters of the territorv : the 
 said wat ,rs continued to be free aud open high. ways, at least 
 to all citiv.c^Mis of the United States. 
 
 Sec, in confirmation of the preceding points, in addition to 
 authorities and arguments previously presented, the memorial 
 of the Hudson's Bay Company, on the showing of which the 
 license was granted by Lord Glenelg, and the license itself, in 
 the Appendix, Nos. 7 and 8. 
 
 See, also, in the Appendix, extracts, of the same period, from 
 lettf^i's of Sir John Belly and Sir George Simpson, exhibiting 
 the inducements of aggression, usurpation, and hostility, as 
 
 
 respects the United States and the Russian Einpire, l^y wincii 
 
 ipany 
 
 the Company then professed to be goveriuMl ;uid guided, and 
 
 ^ative 
 
 which constituted the avowed objects of its jn'etension to favor 
 
 
 froui the British Govurnment. 
 
 njoys 
 
 
i 
 
 
 i'S* 
 
 Et'«! 
 
 li 
 
 r 
 
 i 
 
 152 
 
 10. The Company could not, and did not, acquire any pos- 
 sessory rif/hts, as distinguished from mere common use, in the 
 trade of said territory or in its navigable waters. 
 
 11. Tiie license did not confer on the Company any proprie- 
 tary rights in said territory: if it had professdl to do so, the 
 grant would have heen null and void. It was legally impossi- 
 ble for the Company to become the owner of any land there, 
 in view of the peremptory prohibition of the treaty regulat- 
 ing the relations of the two Powers. 
 
 12. Under its license, the Company lield, for a term of years, 
 certain rights against the British Crown, which, whether or 
 not entitled to be denominated possessory rights, would expire 
 absolutely, by reason of their legal quality and their intrinsic 
 nature, with the termination of the license. 
 
 13. That license, in so far as regards any effect it might 
 have, or any conse(iuences relatively to the United States, 
 expired with the local power of the licensor, namely, on the 
 conclusion, in 184G, of the joint occupancy of the two Gov- 
 ernments, and the devolution of the territory to the United 
 (States. 
 
 14. The United States does not hold the dominion aiid sov- 
 ereignty of Oregon and Washington in virtue of any cession 
 bv Great Britain, but in virtue of original and antecedent 
 right, recognized as such by Great Britain. 
 
 The United States were sovereign Je jure during the joint 
 occupation, although exercise of such sovereignty, in fact, 
 was for a time partially suspended or '■ ^Id in abeyance by 
 convention. 
 
 1"). Whatever claim, if any, the Hudson's Bay Company 
 (including the Puget's Sound Agricultural Company) holds 
 against the United States, it holds by grace and favor, under 
 the treaty dissolving the joint occupation of the two Powers, 
 and not otherwise. 
 
 10. The sole premises of such claim are in the voluntary 
 engagement of the United States to protect the possessory 
 rights, if any, belonging to the Company. 
 
 IT. Such possessory riitlil.-*, in any the largest possible legal 
 
I sov- 
 jssion 
 jedcnt 
 
 joint 
 
 fact, 
 
 CO by 
 
 ipany 
 holds 
 in (I or 
 hvcrs, 
 
 [ntary 
 issory 
 
 I legal 
 
 153 
 
 or equitable construction thereof, could only rest in fixed and 
 valuable improvements on land, whereof the fee simple, as well 
 as the sovereignty, had always been and still was continuously 
 in the United States. 
 
 18. All other rights, which the Company might have had, 
 if any, within the territory, ceased to exist on the termi- 
 nation of the joint occupancy : they became a nonentity, and, 
 of course, not existing, they were incapable of being protected, 
 and could not have been intended or comprehended by the 
 treaty as possessory rights. 
 
 19. Reducing, then, the possessory rights of the Company 
 to their true proportion, as improvements made on the land 
 of another by a tenant at suflfrrance or a licensee, therefore, 
 on his leaving the land, the ordinary rules of law apply to 
 the question of the value of such improvements. 
 
 20. By no conceivable rule of right, by ro doctrine of jus- 
 tice, to be found in public or private law, or in the construc- 
 tion of treaties, or in international jurisprudence, has the 
 Company here any claim to the fee of land, or indemnification 
 for being dispossessed thereof, or consideration for the transfer 
 of the same to the United States. 
 
 The fee simple belongs now, as it always did belong, to the 
 United States, and cannot pass to its owner by transfer from 
 the Company, which is not its owner. 
 
 21. The Hudson's Bay Company, including the Puget's 
 Sound Company, has no pretension of right to indemnification 
 by the United States for cattle, hr rses, or sheep injured or 
 destroyed by private persons, or for any damage done to its 
 improvements by such persons: for the redress of such wrongs 
 the courts of justice in Oregon and Washington were open to 
 the Company, as to all other inhabitants of or sojourners in 
 the United States. 
 
 22. As the fee simple of any and all lands ever occupied by 
 the Company belongs to the United States, and as all preten- 
 sion of right of continued occupation by the licensee Company 
 expired with the power of the licensor Government, or, at 
 the latest possible day, on the revocation of the license by the 
 
 licensor, the Company has no interest in any prospective value 
 20 
 
 / 
 
154 
 
 in 
 
 of the land by reason of the act lai or contingent location of 
 railroads, or the actual or contingent foundation of cities or 
 towns: — all claims founded thereon are groundless and false : 
 the Company has no claims in this behalf beyond the actual 
 value of itr, own improvements. 
 
 Wc make the point distinctly, because misapprehension in 
 ibis respect is the excuse for most of the extravagant estima- 
 tions of value by witnesses for the Company. 
 
 Compare, for example, the opinion of one of the witnesses, 
 (AV. 11. Farrar,) in II. B. Co.'s Ev., p. 251, witli the explana- 
 tion and contradiction thereof by the same witness, in U. S. 
 Misc. Ev., p. 183. 
 
 23. The Company has no equities to set up ; it has abused 
 all its rights; it has been guilty of numerous acts of usurpa- 
 tion; it has been, and is, a mere incumbrance and dead-weight 
 on the British Provinces, by reason of its anti-colonization 
 policy ; it wrongfully engrossed and monopolized for a series 
 of years the commerce and production of Oregon and Wash- 
 ington, committing strip and waste there at will, pasturing its 
 herds on the public domain, cutting and exporting timber, 
 and otherwise acting as universal owner, greatly ♦'o its ad- 
 vantage and to the injury of the United States ; and its claims 
 are to be measured by no rules but those o^ (^trktit^simuni. jus. 
 
 24. As full satisfaction of all the just claims of the Com- 
 pany, and as adequate compensation for the transfer of its 
 rights to the United States, including those of the Puget's 
 Sound Company, an ample sum (.$300,000) was proposed by 
 Governor Stevens. 
 
 Governor Stevens exhibits in detail the elements of his 
 estimation. 
 
 We possess evidence from the Company which strikingly 
 confirms his estimate. It is the onumerotioii of all. the estab- 
 lishments of the Company, which v.'o find appended to the 
 reports of the House of Commons' committee, p. 3G5. 
 
 This document bears unimpeachable testimony to the fraud- 
 ulent exaggeration of values attached by the Company to its 
 assumed rights in Orefjron and Washington. 
 
 The total number of all the posts or establishments of the 
 
15') 
 
 lof liis 
 
 dngly 
 Icstab- 
 
 to the 
 
 ttVand- 
 
 to its 
 
 )f the 
 
 Company at the date of that enumeration (ISofJ) was one Inm- 
 dred and fifty-four. 
 
 Many of them arc of greater magnitude and importance 
 tlian Fort Vancouver. We shall do no injustice to the Com- 
 pany in averar/lnr/ all tliese posts, for the purpose of cstiinat- 
 in<j ainxrcicato and comparative values. Tin' ll><i includes i\7s- 
 cjvalJii and CowUtz, act do/ru as cutatd/'shuieut.s of the Ifinhoii's 
 Bnif Cnrnpanji. 
 
 Deducting from the sum total the posts in Oregon and Wash- 
 ington, sixteen in number, (Cowlitz appearing twice in the 
 memorials,) the balance of one hundred and thirty-eight rep- 
 resents the other posts of the Company. 
 
 Now, by rule of proportion, if the 1(1 posts within the I'nitcd 
 States are of the value of. say, £1,000,000, (the claim is Xt,- 
 025. o80.) then the roaainiii;/ posts (138) are of the value of 
 .£S, 025, 000. This result does not include com)iierci(d assets, 
 such as ships, merchandise, pelts, and cash on hand, as per 
 the cxliibits of the International Financial Society. Adding 
 those, and aduling the present claims, we should roach the re- 
 sult, not of £1,500,000, but of nearly £12,000,000!! as the 
 actual value of the property of the Hudson's IJay Company. 
 
 Let us now reverse the terms of the proportion. Take, ac- 
 cording to the appraisement of the Company's property on sale 
 to the Financial Society, XI, 500,000 as the value of the entire 
 property; deduct, say, £500,000 for cash, ships, merchandise, 
 and pelts, (which is a deduction much below the probable 
 truth,) and there remains XI, 000, 000 as thofidl value of all 
 the territorial rights and 7'eal estate of the Company. 
 
 If 1(U posts, averaged, be worth £1,000,000, then It) of these, 
 taken at hazard, can be worth only COT, 5(10, — say >^407,800 for 
 all the [)osts in Oregon and Washington. 
 
 ]jut still, even that reduced sum will be grcatl;.' in excess ; for 
 we did not make any deduction from the £1,000,000 of assumcMl 
 total real estate for the territorial rights of ilu- (Jompany : 
 they wore left included, llow much ouglit we to allow for 
 them 'i On the lowest calculation we have bet-u able to make 
 of them, they stand, in the Company's appraisement, at 
 X47G,4jJ1. (See supra, p. 112.) 
 
 i I .). ,.i««ii;f.i jt"»»»*».-« 
 
156 
 
 
 %mi 
 
 ,11; 
 1- 
 
 i 
 
 £9 
 
 W-'^ 
 
 
 If, now, we deduct this from the assumed .£1,000,000, wc re- 
 duce it nearly one half, and the result Avill approximate to, 
 say, $250,000; which in our judgment is a large estimation of 
 the value of the rights of the two Companies, and substan- 
 tiates the favorableuess of the calculation of Governor Stev- 
 ens. 
 
 25. When the British Government undertook to negotiate 
 this matter, the sum which it proposed, ($500,000), was greatly 
 in excess of any just valuation of the rights of the two Com- 
 panies. 
 
 26. The sum previously proposed by Sir John Pelly ($700,- 
 000) was still more largely in excess of any such just valuation. 
 
 27. When Sir George Simpson undertook to value the 
 claims of the two Companies at §1,000,000, the claims passed 
 out of the domain of reason or justice, and sank into the 
 category of fraudulent excess and attempted extortion. 
 
 28. And, finally, in the present aspect of the claims of the 
 two Companies, as they stand before the Commissioners, and as 
 tested by the evidence in the record, those claims, over-stated 
 and exaggerated as they are, by interested witnesses, to millions 
 in amount, must of necessity be characterized as a mere specu- 
 lative adventure under the International Financial Society's 
 auspices, of audacious and stupendous fraud against the Gov- 
 ernment of the United States. 
 
 All of which is respectfully submitted, by 
 
 0. CusHir?a, 
 Counsel for the Unitii States.