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Those too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Un des symboles suivants apparattra sur la derniire image de cheque microfiche, selon le cas: le symbols -~^ signifie "A SUIVRE", le symbols V signifie "FIN ". Les cartes, planches, tableaux, etc., peuvent Atre filmAs A des taux de reduction diff^rents. Lorsque le document est trop grand pour Atre reproduit en un seul cliche, il est filmi A partir de Tangle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images n^cessaire. Les diagrammes suivants illustrent la mithode. 1 2 3 12 3 4 5 6 ' BEITISH AND AMEEICAN JOINT COMMISSIOM FOE THE SETTLEMENT OF THE CLAIMS or TUB HDDSON'S BAY & mm MM AGEICDITDRAL COIPAHIES, ^ MEMOEIAl AND AEGTJIENT ON THE PART OF THE HFDSOI'S BAY COMPAIY. Pontreal : PRINTED BY JOHN LOVELL, ST. NICHOLAS STREET. 1868. ^...jmmm r"" 1 i BRITISH AND AMERICAN JOINT COMMISSION ON THE HUDSON'S BAY AND PUGET SOUND AGRI- CULTURAL COMPANIES' CLAIMS. In the matter of the Claim of the Hudson's Bay Company. To THE Honorable the Commissioners : The Governor and Company of Adventurers of England trading into Hudson's Bay, commonly called the Hudson's Bay Company, Claimants, submit the following Memorial and statement of their claims upon the United States ; and for facts and consi- derations in support of such claims, respectfully declare : — That, in the year 1846, and for a great number of years previous thereto, the Hudson's Bay Company vrere in the free and full en- joyment, for their own exclusive use and benefit, of certain rights, possessions and property of great value, within and upon the Ter- ritory on the North-west Coast of America, lying Westward of the Rocky Mountains, and South of the 49th 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 enjoyed by the Hudson's Bay Company, had been acquired while the said Territory was in the ostensible possession, and under the Sovereign ty and Government of the Crown of Great Britain, and the Com- pany held and enjoyed the same, with the knowledge 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 concluded between Great Britain and the United States of America, on the 15th day of Jime, 1846, while the Hudson's Bay Company were in the foil and free possession and enjoyment of their said rights, it was in effect declared to be desirable for the future welfare of both Countries, thai the state of u doubt and uncertainty, which had theretofore prevailed, respecting the Sovereignty and Government of the Territory on the North- West Coast of America, lying Westward of the Rocky Mountains, should be finally terminated by an amicable compromise of the rights mutually asserted by the two parties, upon such terms of settlement as might be agreed upon ; and thereupon, by Article I. of the said Treaty, the line of boundary to be thereafter observed between the Territories of Great Britain, and those of the United States of America, then in question, was established by mutual compromise and agreement. That, by Article III. of the said Treaty it was provided : That in the future appropriation of the Territory South of the 49th pa- rallel of North latitude, as provided in Article I. of the said Treaty, the possessory rights of the Hudson's Bay Company, and of all British subjects who might be already in the occupation of land or other property lawfully acquired within the said Territory, should be respected : and by Article II. of the same Treaty it was further provided, that from the point at which the 49th parallel of North latitude should be found to intersect the Great Northern branch of the Columbia River, the navigation of the said branch should be free and open to the Hudson's Bay Company, and to all British subjects trading with the same, to the point where the said branch meets the main stream of the Columbia, and thence down the said main stream to the ocean, with free access into and through the said river or rivers, it being understood 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 upon 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 enjoyment as aforesaid, fell within and under the Sovereignty and Government of the United States, and under a just construction of the said Treaty, and of the obligation therein assumed, that the possessory rights of the Hudson's Bay Company should be respected according to the true intent and meaning of the same, the United States became and were bound to uphold and maintam the said Company, in the free, undisturbed and continual occupancy, use and enjoyment of all the Ill '5 rights, possessions and property, tfien by them possessed and held, and to protect and indemnify them from aggression and injuries, by or through any person acting, or claiming to act, under the author- ity or the laws of the United States. That the rights which the United States were so held to respect, and in the enjoyment of which they were bound to uphold and main- tain the Company, consisted of: — First, — The free and undisturbed possession, use and enjoyment in perpetuity, as owners thereof, of all the posts, establishments, 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 thereupon. Secondly, — The right of trade in furs, peltries and other articles, within and upon the whole of the said Territory, and the right of cutting timber thereupon, for sale and exportation. Thirdly, — The right to the free and open navigation of the Co- lumbia River, from the point at which the 49th parallel 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, according to the terms of the said Treaty, and the obligation of the United States resulting therefrom ; but on the contrary, by and through the ag- gressions and proceedings of persons acting, or claiming to act, under the authority of the Government, or of the laws of the United States, have been violated and restricted, and in great part extin- guished and destroyed ; and the Company by reason of the said aggressions and proceedings have been compelled in many cases to relinquish the same. That, by the Treaty concluded on the 1st day of July, 1863, it was agreed that all questions between the United States authorities on thfe one hand, and the Hudson's Bay Company on the other, with respect to the possessory rights and claims of the latter, should be settled by the transfer of those rights and claims to the Govern- ment of the United States for an adequate money consideration. And the Claimants now submit a detailed statement, and valua- tion of the said rights, severally, under their distinct heads or classes; and of the claim of the Hudson's Bay Company under and by virtue of the said Treaty and of the premises herein set forth : I ! \; ! i I? I. LANDS AND TRAIflNG ESTABLISHMENTS. The forts, posts, establishments, farms, pastures, and other lands, with the buildings and improvements thereupon, held and possessed within the said Territory by the Hudson's Bay Company, for their own sole use and benefit, at the time of the said Treaty of the 15th June, 1846, and for a long time before, which had, in some instances, been acquired from prior occupants, and in others, had been erect- ed and made, and originally settled and occupied by the Company, were as follows : — , The Post at Vancouver, so called, consisting of a stockaded fort, with dwelling houses, store houses, school houses, houses for servants, shops, bams, and other outbuildmgs, with a stockade and bastions, erected at great cost and of the value of fifty-five thousand pounds sterling (£56,000) : other dwelling houses and granaries, dsuries, bams, stables, and farm buildings appurtenant to the said post r'or the purposes of farming and trade, built at various points near to the main post at Vancouver, and on Sauv^'s Island, toge- ther with saw mills and flouring mills, forges, workshops, and store houses, iCl erected at a great cost at the time, and of the value of forty-five thousand pounds sterling (£45,000) ; the tract of land occupied, possessed, and used by the Company for its post at Van- couver, including its stations, enclosed and cultivated fields, and the pasturage for its cattle, horses and sheep, extending in front along the bank of the Columbia River, about twenty-five miles, and backward from the said Biver about ten miles, and Menzies' 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- five thousand pounds sterling (£75,000.)* The said several sums making together the entire sum of one hundred and seventy-five thousand pounds sterling. (£175,000) equal to eight hundred and fifty-one thousand six hundred and sixty- six dollars and sixty-seven cents (1851,666.67.) the Claimants aver to be the value of the fort, buildings, land and establishment at and near Vancouver and on Sauv^'s Island, which \SiQj are entitied to claim and receive for the same. * This lam ii increued bj the motion to amend, in the sum of $413,666 to be ndded to the mm of $851,666.67 making 1,265,332.67. A large portion of the land thus occupied, possessed and used, has, since the 15th day of June, 1846, been taken from the posses- sion of the Company by American settlers claiming under the land laws of the United States, and the Company was dispossessed of the fort and establishment at Vancouver, and the land near thereto, bv the orders of the military oflScers of the United States, in the year 1860. The Post at Champoeg, consisting of one dwelling house, one granary, and outbuildings, all of the value of three thousand pounds sterling (£3,000) ; and of the enclosed land of the value of two hundred pounds sterling (£200) : and, in addition, certain town lots in the town of Champoeg, purchased of American settlers, of the value of two hundred pounds sterling (£200) ; making toge- ther the entire sum of three thousand four hundred pounds sterling £3,400) equal to sixteen thousand five hundred and forty-six dollars and sixty-seven cents ($16,546.67.) The Post at the mouth of the Cowlitz River, consisting of dwelling house, granaries, and outbuildings, erected by the Com- pany, of the value of four hundred pounds sterling(£400) ; and the land occupied and used by them of the value of one hundred pounds sterling (£100) ; making together the entire sum of five hundred pounds sterling (£500) ; equal to two thousand four hundred and thiriy-three dollars and thirty-three cents ($2,433.33.) The Post at Fort George, commonly called Astoria, consisting of dwelling houses, store houses, and outbuildings, acquired by the Company from the prior occupants, of the cost and value of seven hundred and fifty pounds sterling (£750) ; and two acres of land whereupon the said post is built, and thereto appertaining, posses- sed and used by the Company, and being of the value of one hundred pounds sterling (£100) ; making together the entire sum of eight hundred and fifty pounds sterling (£850) equal to four thousand one hundred and thirty-six dollars and sixty-seven cents ($4,136.67.) This post was taken possession of in 1849-60 by the oflScers of the United States. The Post at Cape Disappointment, consisting of a dwelling house and store erected by the Company, of th value of one thou- "\ u I sand pounds sterling (XI, 000) ; and the land appertaining to the post occupied, used and possessed by them, being one mile square, and of the value of two thousand pounds sterling (<£ 2,000) ; making together the entire sum of three thousand pounds sterling (£3,000) equal to fourteen thousand six hundred dollars ....(814,600.00.) 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 United States for a light house or other public purpose. The Post at Chinook or Pillar Rock — a fishing station — con- sisting of a curing house erected by the Company, of the cost and value of two hundred pounds sterling (£200) ; and the land used and occupied by them for said station, of the value of one hundred pounds sterling (£100) ; making together the e tire sum of three hundred pounds sterling (£300) equal to one thousand four hundred and sixty dollars ($1,460.00.) The Post at Umpqua, consisting of dwelling house, bam, sta- bles, and outbuildings, erected by the Company, of the cost and value of three thousand pounds sterling (£3,000) ; 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 (£2,000) ; making together the entire sum of five thousand pounds sterling (£5,000) equal to twenty-four thousand three hundred and thirty-three dollars and thirty-three cents ($24,333.33.) The whole of this last mentioned land is now occupied by an American settler, claiming to hold the same under the laws of the United States. The Post of Nez-Peroes, commonly called Walla Walla, con- sisting of two dwelling houses and servants* houses, storehouses and other buildings and outbuildmgs, walls and bastions, all built by the Company, of Adob^ brick, and of the cost and value of three thousand two hundred pounds sterling (£3,200) ; the land on the Columbia River occupied and used as belonging to the said post, and also the land along the bank of the said river used for the landing of the Company, of the value of ten thousand pounds Til sterling (j£ 10,000) ; the lands surrounding the fort, used as pas- turage, of the value of two thousand pounds sterling (j£ 2,000) ; the farm near the Post, being of some thirty acres, more or less, in extent, of the value of one thousand five hundred pounds sterling (Xl,500); making together the entire sum of sixtt t. thousand seven hundred pounds sterling (jG 16,700) equal to eighty-one thousand two hundred and seventy-three doUarfi md tliirty-thrco cents (88t,27u.33.) This posL uii.l the lands were abandoned by the so rv ants of the Con^T'ony under the orders of the United States authorities in 1855. The Post at Fort Hall, consisting of houses, shops, stores, mills, and outbuildings, horse-parks and walls, all of Adobd brick, and. of the value of three thousand pounds sterling (£3,000) ; the lands enclosed and cultivated, of the value of one thousand pounds ster- ling (X1,000) ; and the lands occupied and used for the pasturage of horses and cattle, of great extent, and of the value of one thousand pounds sterling (.£1,000); making together the entire sum of five thousand pounds sterling (£5,000) equal to twenty-four thousand three hundred and thirty-three dollars and thirty-three cents ($21,333.33). This post was necessarily abandoned by the Company on account of hostilities between the United States and the Indian .tribes in 1856. The Post at Boise, consisting of houses, and outhouses, build- ings, wall and bastions and horse-parks, all built of Adobd brick, and of the cost and value of one thousand five hundred pounds sterling (£1,500) ; about three miles square of land aroimd the post, used and occupied by the Company for the purpose of agri- culture and pasturage, all of the value of two thousand pounds sterling (£2,000) ; making together the entire sum of three thou- ssand five hundred pounds sterling (£3,500) equal to seventeen thousand and thirty-three dollars and thirty-three cents ($17,033.33) . This post "was necessarily abandoned by the Company in conse- quence of the hostilities between the United States and the Indian tribes in 1855. viU I i i The Post at Okanagan, consisting of dwelling houses, servants' hoiues, storehouses, outbuildings, all of Adob^, stockade and bas- tions erected by the Company, and of the value of two thousand five hundred pounds sterling (£2,500) ; thirty acres of land at the fort, used, occupied and cultivated by the Company, of the value of one thousand pounds sterling (jE 1,000) ; and near and belonging thereto, other lands for the pasturage of herds of horses, of the value of five hundred pounds sterling (X500) ; making to- gether the entire sum of four thousand pounds sterling (£4,000) equal to nineteen thousand four hundred and sixty-six dollars and sixty-seven cents (819,466.67.) The Post at Colvile, consisting of dwelling houses, servants' houses, shops, stores, outbuildings, stables, bams, yards, stockades and bastions, flouring mills and appurtenances, all erected by the Company, and of the cost and value of ten thousand pounds sterling (£10,000) ; three hundred and fifty acres of land, occupied and used and cultivated as farm land, and about five miles square of land occupied and used for pasturage of their cattle and horses, of the value of five thousand pounds sterling (£5,000) ; the White Mud Farm (appurtenant to this post) with a house, barn and stable? store and outbuildings erected upon it by the Company, of the cost and value of one thousand pounds sterling (£1,000) ; the land used and occupied as a farm, thirty acres in extent, and of the value of five hundred pounds sterling (£500) ; making together the entire sum of sixteen thousand five hundred pounds sterling (£16,500) equal to eighty thousand three hundred dollars ($80,300.00.)* The Post at Kootanais, consisting of houses and stores erected by the Company, of the cost and value of five hundred pounds sterling (£500) ; the land occupied and used for the post, and near thereto, of small extent, of the value of five hundred pounds ster- ling (£500) ; making together the entire sum of one thousand pounds sterling (£1,000) equal to four thousand eight hundred and sixty-six dollars and sixty-seven cents ($4,866.67.) • This sum is increased by the motion to amend, in the sum of $46,233 to be added to it making $126,533. IX V ■ V The Post at Flat-Heads, consisting of dwelling houses and store, and of a small piece of land enclosed as a horse yard, of the value of six hundred pounds sterling (j6600) equal to two thousand nine hundred and twenty dollars (12,920). All these posts were established and maintained for the support of their servants, and of others in the employment of or trading with the Company, and were not only indispensable for carrying on their trade in the country South of the 49th parallel of North latitude, but were also of great value for the support of their posts and trade in the country North of that parallel. They were con- nected with and dependent upon each other, and were of greater value to the Company when used together. The farms and pas- ture lands were also of great annual value. It may be added, that the discoveries of gold, and other mine- rals, which have been made within a few years past upon lands within the territory occupied by the Company, prove their value to be much higher than any estimate, which could have been put upon them before their general mineral wealth was known ; and although it is not intended to urge this fact as a distinct ground of claim, yet it is manifestly fair, that it should not be without in- fluence in the assessment to be made by the Commissioners. The Company have been, as before stated, deprived of the pos- session of some of their posts and farms and other lands, by Ameri- can settlers claiming under the land laws of the United States ; of some by the action of the Officera of the United States ; and of others by the hostilities beween the United States and Indian tribes ; which said tribes had, until the Treaty of the 15th June, 1846, been under the control of, and at peace with the said Com- pany. The privation of xhe annual profits and rents of these farms and lands, and the occupation of their posts, and the compelled aban- donment of the said posts and farms and lands, have caused to the Company, damage and loss to an amount exceeding fifty thou- sand pounds sterling (j£50,000). The value of the several forts, posts, establishments, farms, pas- turages 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 (£235,350) making toge- ther with the sum of fifty thousand pounds sterling (£50,000) for loss suffered, as stated, the entire sum of two hundred and eighty- five thousand three hundred and fifty pounds sterling (£285,350) equal to one million three hundred and eighty-eight thousand seven hundred and three dollars and thirty-three cents. (11,388,703.33). Which the Hudson's Bay Company claim and are entitled to re- ceive from the United States. II. EIGHT OF TRADE. The chief business of the Hudson's Bay Company in the year 1846, and for a gi*eat 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 magnitude, carried on in Oregon over a wide range of country, and involved an extensive foreign commerce. Large sums of money were annually expended in it, and the returns were highly profitable, and important to the general prosperity of the Company. For the proper and beneficial carrying on of that trade, the Company required, not only to hold and possess the posts, establish- ments, farms, and other lands already described, but also to have the control, possession, and use of extensive tracts of country ; and they had in fact, at and before the date of the Treaty of the 15th June, 1846, in their control, possession, and use, for such purposes, a large portion of the country lying as hereinbefore men- tioned on the North-West coast of America, to the Westward of of the Rocky Mountains, South of the 49th parallel of North lati- tude, and known as Oregon. And they had therein and thereupon a right of trade which was virtually exclusive. The profits derived from their said trade, before and in the year 1846, exceeded in each year the sum of seven thousand pounds sterling. And such right of trade, and the control, possession, and use, of the said Territory for the purposes thereof, independently of their foreign commerce and the sale of timber, exceeded in total value the sum of two hundred thousand pounds sterling. Under the settlement of the boundary line by the Treaty of the loth June, 1846, the said Territory fell under the Sovereignty XI and Government of the United States ; and by reason thereof, and of the acts and proceedings had and taken, under and by colour of the authority and of the laws of the United States, the control, posses 3ion, 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, peltries, and other articles, as well as their trade in the shipment and sale of timber and their foreign commerce, were restricted and denied, and in effect wholly taken away and lost, and for their said rights, and the forced relinquishment and loss thereof they claim the said sum of two hundredthousand pounds sterling (.£200,000) equal to nine hundred and seventy-three thousand three hundred and thirty-three dollars and thirty-three cents ($973,333.33). III. NAVIGATION OF THE COLUMBIA RIVER. The Hudson's Bay Company aver, that under the Treaty of the 15th June, 1846, by Article IV (II)* of that Treaty, they have a right to the free and open navigation of the North branch of the Col- umbia River, from the point at which the same is intersected by the 49th parallel of North latitude, to the main stream, and thence to the ocean, with free access and passage into and through the said river or rivers ^ and that British subjects trading with them have an equal right of navigation, and that to the Company, and to those thus trading with them, 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 navigate the said river, or rivers, and to pass unobstructed over their portages, was and is of great value to the Company, and is also of great and increasing political and national value to the United States ; and for its relinquishment and transfer? the Company claim and are entitled to receive the eum of three hundred thousands pounds sterling (^6300,000) equal to one mil- lion four hundred and sixty thousand dollars ($1,460,000). In addition to the special statements hereinbefore contained, the Hudson's Ba^ Oompany submit, that throughout a long series of years, they expended largo sums of money, and devoted much • Tho «< IV " is a clerical error. The article meant is the 2nd. I i il Xll a: I .. labour and time in efforts to bring the native population into such a condition, that safe and profitable relations, in regard to trade and general intercourse could be established with them. The explora- tion of the country, the expenditure for labour and of the parties engaged, the opening of roads, the strong force required as a pro- tection against the Indians, their conciliation, brought about, some- times by a resort to forcible measures, but chiefly by liberal deal- ing, effected a great change in the condition of the country, ren- dering it fit for immediate settlement. These were substantial bene- fits to the Govemm> it and people of the United States, under whose Sovereignty this Territory fell, and could not have been secured without a very large outlay. It is, of course, impossible to give any minute details of expenditures of this class, and of the advantages which the United States have derived from them, but the justice of extending to the Hudson's Bay Company liberal com- pensation, founded on these considerations, is too apparent to allow of any reasonable hesitation in admitting it. It is obvious, that of the three classes of claims set forth in the foregoing Memorial, the first only consists of particulars which in their nature admit of direct proof of value, but with respect even to these, the Honorable The Commiasioners are earnestly requested to notice, that circumstances which the claimants could in no degree prevent or control, have greatly impaired the means of producing such proof, in the positive and complete form which, otherwise, they would have been enabled to do. Among these circumstances may be specified, the aggressive acts, and the general . conduct of American citizens, and of persons acting under the authority of the United States, commencing shortly after the 15th June, 1846, and continuing from year to year, by which the rights of the claimants under that Treaty were violated and denied, and their property and possessions were, in some instances, usurped and taken from them, and in others, were necessarily abandoned. This course of conduct was, perhaps, to be expected; from the anomalous position in which the Company were placed — a foreign Corporation exercising a g^waM' sovereignty, and txclusive rights over territory transferred to a Power, whose policy in dealing with such territory was diametri- cdly opposed to that which the Company pursued, and from which they derived their profits. But however this may be, it is an un- XIU doubted consequence to the Company, that their rights and posses- sions have been thereby made of comparatively little value, and the difficulty of obtaining evidence upon them has been rendered very great. This difficulty has been essentially increased by the lapse of time since the claims first arose. A delay of seventeen years intervened, during which the United States, while failing to cause the rights of the Hudson's Bay Company to be respected, continued to refuse any satisfactory settlement of their demands. The inevitable effect of this delay, now extended to nearly twenty years, has been to remove by death, or otherwise, the greater num- ber of important witnesses, and to weaken the evidence which is still available, both by the remoteness, in point of time, of the facts to be established, and by reason of the natural decay or of the disappearance, of much which constituted the value of the rights and possessions, for which the present claims are made. With respect to the second, and third classes of claims set forth, the Claimants solicit the attention of the Honorable The Commis- sioners, to the fact before alluded to, that they are of a nature which does not admit of a formal and precise valuation by testi- mony. Consisting as they do of important rights of trade, and of other rights of a public and national character, they ars manifestly of great value. But the estimation to be put upon them, and the amount of the money consideration to be paid for their relinquish- «ad transfer, must be. settled by the judgment of the Commis- meut sioners, founded upon their own experience and knowledge, aided by public documents and the recorded opinions of statesmen and writers of authority, and by such general estimates under oath as it may be possible to obtain. The Claimants have made the foregoing statement and observa- tions with respect to evidence, for the purpose of urging for the serious consideration of the Honorable The Commissioners, that in then* examination and decision of the present claims, they ought not to be restrained by the rules which are observed in the trial of ordinary issues in Courts of Law. Those rules, under the circum- stances, 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 unreasonable and unjust. XIV i I In conclusion, 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 : First,— For their forts, posts, establishments, farms, pasturage, and other lands, with the buildings and improvements thereon, as hereinbefore set forth, the sum of two hundred and eighty-five thousand three hundred and fifty pounds sterling (^285,350.)* Secondly, — For the right of trade, as hereinbefore set forth, the sum of two hundred thousand pounds sterlmg (j£ 200,000.) Thirdly, — For the right of the free navigation of the Columbia River, as hereinbefore set forth, the sum of three hundred thousand pounds sterling (£800,000.) The said several sums making together the entire sum of seven hundred and eighty-five thousand three hundred and fifty pounds sterling (£785,350) equal to three million eight hundred and twenty-two thousand and thirty-six dollars and sixty-seven cents $3,822,036.67).* And the Hudson's Bay Company ask that the Honorable The Commissioners will, after due examanation, 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 nianner provided by the said Treaty of the 1st July, 1863. And 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 ready and willing to translr to the United States all their rights and claims according to the terms of the said two Treaties. (Signed), CHARLES D. DAY, Counsel for the Hudson's Bay Company." Dated, 8th April, 1865. • This Bum is increased by the motion to amend, in the snm of $459,900 to bo added to it. BRITISH AND AMERICAN JOINT COMMISSION ON THE HUDSON'S BAY AND PUGET SOUND AGRI- CULTURAL COMPANIES' CLAIMS. Motion in amendment of the Memorial. // Inasmuch as it appears by the evidence of record, that the lands claimed by the Hudson's Bay Company at each of the posts of Van- couver and Colville, greatly exceed in value the respective.amount8 stated and claimed for them in the Memorial in this cause fyled ; It is moved by the counsel for the Claimants that, in order to equa- lize tbeir claim with the proof, they 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 is to say : 1. That an addition of £85,000 stg., equal to $413,666.66, be made to their claim for the land at Vancouver, and that such claim be taken and held to be for the sum of one hundred and sixty thousand pounds sterling, equal to $778,666.66, instead of seventy- five thousand pounds sterling, equal to $365,000. 2. That an addition of £9,500 stg., equal to $46,233 . 34, be made to their claim for the land at Colville and " White Mud Farm," and that such claim be taken and held to be for fifteen thousand pounds sterling, equal to $73,000, instead of five thousand pounds sterling, equal to $26,766.66. And that in conformity with such amendment, the statement in the Memorial of the aggregate value of the rights of the Claimants, and the conclusions by them therein taken, be reformed and increas- ed by adding thereto the said sum of X 85,000 stg., and the said sum of £9,500 stg., making together the sum of ninety-four thousand and five ^^.undred pounds sterling, equal to four hundred and fifty-nine thousand and nine hundred dollars, and that the entire amount of their claim be taken and held to be the sum specified in the said statement and conclusions together with the further sum of four hundred and fifty-nine thousand nine hundred dollars thereunto added. CHAS. D. DAY, Counsel for the H. B. Co. BRITISH AND AMERICAN JOINT COMMISSION ON THE HUDSON'S BAY AND PUGET SOUND AGRI- CULTURAL COMPANIES' CLAIMS. In the matter of the claim of the Hudson's Bay Company. ^KGUMENT. To THE Honorable the Commissioners, In entering upon the duty of submitting to the Honorable Com- mission the view which the claimants consider themselves justified in taking of this important case, I may be permitted to congratulate all parties concerned in it upon the approaching termination of a long pending and vexatious controversy. The decision now sought is to be final, and the character of the tribunal is a guarantee that it will be wise and just, and will justify the wisdom of two great nations in adopting this fairest and most reasonable of all methods for settling perplexed and conflicting questions of right. INTRODUCTORY STATEMENT. The Memorial, containing a full exposition of the claim of the Hudson's Bay Company under the treaty of 1846, which forms the subject of the present discussion, has been long in your hands ; and I do not propose to lengthen this statement unnecessarily by re- peating the precise terms in which the pretensions of the claimants are set forth in it. It will be sufficient that I cover all the particu- lars of the demand and all the grounds upon which it rests in a series of propositions, applying m support of them such reasoning and evidence as are available, and then, comparing the proposi- tions with the statements and conclusions of the Memorial, endeavor to shew that the latter are fully established. A - li No formal answer vfM made to the Memorial by the Counsel for the United States, but evidence has been taken as if a general denial had been put in. I must bespeak a large measure of patience for unavoidable tediousness of detail in setting forth the grounds of the claim which has grown out of remote beginnings and amid exceptional circumstances, under relations and agencies far removed from the sphere of ordinary business operations in a civilized and matured condition of society. In order to a full understanding of the magnitude and na- ture of the rights involved, they must be traced from the early history of their establishment, as costly as it was laborious and perilous, up to the day on which the claimants were compelled to abandon the country, and to seek at the hands of the United States an indemnity for their loss. A few words will suffice in reference to the origin of the Hud. son's Bay Company. The Corporation was erected by charter (Doc. Ev. A. 1, p. 271) granted by Charles the Second in the year 1670, under the title of " The Governor and Company of Adventurers of England trading into Hudson's Bay" with a perpetual right of trading over a vast extent of country granted to them in perpe- tuity, and described as " all those seas, straits, bays, rivers, lakes, " creeks and sounds, in whatsoever latitude they shall be, that " lie within the entrance of the straits, commonly called Hudson's " straits, together with all the lands and territories upon the coun- " tries, coasts and confines of the seas, bays, lakes, rivers, creeks " and sounds aforesaid, that are not already actually possessed by " or granted to any of our subjects, or possessed by the subjects of " any other Christian Prince or State, with the fishing of all sorts of "fish * * * together with the royalty of the- sea upon the " coasts within the limits aforesaid, and all mines royal * * within " the territories aforesaid, and that the said land be from henceforth ** reckoned and reputed as one of our plantations or colonies in " America, called Rupert's Land, "—making the Company " the true " and absolute lords and proprietors of the same territory, limits and " places aforesaid, and of all other the premises, saving always " the faith, allegiance and sovereign Dominion due to us, our heirs ** and successors, for the same." (. 8 Joined to the grant of this vast territory were rights of" Govern- ment, of administration of Justice in Civil and Criminal Cases, the right of maintaining an army and navy, and making " war or " peace with any prince or people not being Christians," \iith other cognate rights of scarcely less importance. A perusal of the char- ter, will afford a more complete idea of the largeness of these rights and of the extraordinary comprehensiveness of its general provi- sions. The ample powers thus conceded, fell short only of paramount sovereignty, and it is matter of history that they were exercised and gradually extended more in that character than in the spirit of a mere trading corporation. Moreover, the authority of the Company was constantly recog- nized and sustained by the British Government, and with the excep- tion of an Act in the 2nd year of the reign of William and Mary, which does not seem to have had any practical result, we find no instance for more than a century and a half, of any attempt to inter- fere with or restrain its rights. So far, indeed, was it from the policy of Great Britain to endeavor to check, or in any manner to obstruct the operations of this great Corporation, that it encouraged its extension, and the exercise by it of the functions of a governmental body holding practically an absolute control, not only over the wide extent of territory included within the terms of its charter, but also, over that which it gradually acquired by occupation without any formal grant, but with the acquiescence and consent, sometimes tacit sometimes express, of the Imperial Government. The evidence of Mr. EUice, a witness, before the Select Commit- tee of the House of Commons in 1857, will show this, and it is to be found stated in all the books of authority on the subject. Mr. Greenhow, an author of high repute, and whose office in the Depart- ment of State of the United States gives almost an official au- thority to his statements, writing in 1844, says in his " History "of Oregon and California," (p. 392), " Every thing seems to "have been done which could tend to secure for Great Britain the " ultimate possession of the whole territory drained by the Columbia " without infringing in the meantime on the agreement made with the " United States. For this purpose, the British Minister could have " no Councillors better qualified to advise, or whose interests were I L "more completely identified with those of the Government, than the « Hudson's Bay Company." And again, " The Hudson's Bay Com- " pany, representing in all respects the interests o£ Great Britain in " North West America, has indeed become a powerful body." " The " field of its operations was more than doubled by its union with the " North West Company, and by the license to trade, in exclusion " of all other British subjects, in the countries west of the Rocky " Mountains, where the fur-bearing animals were more abundant " than in any other part of the world : while the extension of the "jurisdiction of the Canada Courts over the whole division of the " Continent to which its charters apply, and the appointment of its " own agents, as magistrates in those regions, gave all that could " have been desired for the enforcement of its regulations. " The arrangement made with the Russian-American Company, " through the intervention of the two Governments, secured to the " Hudson's Bay Company the most advantageous limits in the " North West, and the position assumed by Great Britain in the " discussions with the United States, respecting Oregon, were cal- " culated to increase the confidence of the body in the strength of " its tenure of that country, and to encourage greater efforts on its " part to assure that tenure." An excellent exposition of the largeness of the powers exercised by the Hudson's Bay Company, is given by Mr. Bibb, in his opin- ion contained in the Pamphlet of opinions on the extent and value of its possessory rights (p. 34). And on page 36 he thus sums up the nature and completeness of its possession of Oregon. " The facts are " notorious," says he, " that the Hudson's Bay Company took pos- " session of, and have long used, occupied and enjoyed large tracts " of country south of the forty-ninth parallel of north latitude, and " established trading houses and posts, strongly fortified, on the " most eligible places for trade and traffic ; cultivated farms, erect- ^' ed dwellings and mills, and other improvements ; opened mines of " coal and other fossils, and worked them ; kept large flocks and " herds ranging over numerous and undefined pasture grounds ; " cut timber in varioiis places ; sawed lumber for domestic supplies, " and for exportation ; and exercised various other acts of owner- " ship and possession within the territory called Oregon, of a char- " acter too strongly marked to be misunderstood as the eviden- »■■ -^^ " ces of claims of property and posaession made by those profe^aing " to be the true proprietors under their charter of incorporation. " These acts of ownership have been done, exercised, and made " known, before the Treaty between the United States and Great " Britain for adjusting the boundary between them, west of the ** Rocky Mountains, concluded and signed at Washington, on the " loth day of June, 1846." These observations and extracts will ruffice to shew in general terms the nature of th^ position occupied by the Company, as well on the west as on the east side of the Rocky Mountains ; the kind of authority and influence it exercised over that whole wide territory ; and the ^ight in which such occupation and authority, and the rela- tions of the Company to itself, were regarded by the Government of Great Britain. The enjoyment of these great powers and advantages was not, how- ever, destined to be held free from challenge and disturbance, for in 1783, long before the Hudson's Bay Company had extended its possessions beyond the limits indicated by its charter, a rival had sprung up in the old North West Company of Montreal.* That association in a few years absorbed into itself all the minor fur-trad- ing associations, and finally by an agreement with the new North West Company, dated 5th June, 1804, the powerful body known simply as the North West Company, was organised and consoli- dated. This Company pushing its enterprise ? cross the Rocky Moun- tains, established its first post on Eraser Lake in the year 1806 ; then the posts of Kootenais and Flatheads about the year 1808. Thence extending southward it acquired by purchase in Octo- ber, 1813, from the Pacific Fur Company, the post of Okanagan and a post on the river Spokan, and the post of Astoria, afterwards called Fort George, on the southern shore of the Columbia, f The rivalry between two bodies, wealthy and powerful as these were, became so violent that it disturbed the peace of the country, and assumed the form of open war.J It was indeed so formidable, * IrTing's Astoria, p. 19. Oregon Territory, Twiss, p. 20. Qreenhow, His- torj of Oregon and California, p. 260, 261. t Greenhov, 299, n. 303. App. 442. Twiss. 21, 25. I Blue Book, Report Hudson's Baj Co., Er. of Rt. Hon. E. EUice, pp. 223, 224. 6 I a that after the rei)ort of a Commissioner appointed for the purpose by the Government of Canada, the subject was brought under the notice of the Imperial Parliament, and negotiations were opened in London at the instance of Lord Bathurst, then Secretary of State for the Colonies, through the agency of the late Mr. Ellice, and an agreement was brought about by which the Ncrth West Company was merged in the Hudson's 13ay Company, under whoso charter the business was thenceforward carried on. An Act of Parlia- ment (2 Geo. IV., cha- 06,) was passed for the purpose of giv- ing effect to this arrangement, and of putting an end effectually to the competition which had proved not less mischievous to the parties engaged in it, than to the native hihabitants of the country in which it pre va' led. In consequence of this amalgamation and under the Act of Parliament alluded to. Letters Patent were grant- ed by the Crown, first in 1821, and again in 1838, for limited periods, giving to the Hudson's Bay Company an exclusive right of trade against all persons other than citizens of the United States — an exception which at that time was of no practical importance, as no American citizens had then established themselves within the territory occupied by the trading posts of the Company on the Pacific coast.* In the period between the years 1821 and 1846, the Hudson's Bay Company greatly extended its trade over the tract of coun- try known as Oregon, lying north as well as south of the 49th par- allel of north latitude. Their posts were increased and became numerous and important : the most soutlnvard of them, known as Fort Hall, being situated nearly as low as the 43rd degree of north lati- tude, while the most northerly, known as Fort Simpson, approached the Russian boundary. This influence and commercial prosperity, owing, not to the ex- clusive right granted by the license, but to the fact of the long and undisturbed possession of this vast extent of country, and the con- trol they had obtained over the Indian tribes and all the avenues of trade, were sustainhn8on vs. Mcintosh, 8 Wh., 578. 11 ;hts of i to be e case ts, 12 (1 Peters, we find on p. 749 the following form of expression in which the word occurs : '' That when a territory is acquired by treaty, " cession, or even conquest, the rights of the inhabitants to property " are respected.^' And in Mitchell vs. U. S., as cited, the Court said : " Indian '• possession or occupation was considered with reference to their " habits and modes of life ; their hunting grounds were as much in their actual possession as the cleared fields of the whites, and their " rights to its exclusive enjoyment in their own way and for their " own purposes were as much respected.'^ Again in Johnson vs. Mcintosh, Chief Justice Marshall in deli- vering the opinion of the Court said, p. 578 : " All the grants made '• by the Plymouth Company, so far as we can learn, have been re- " speeted;'* and further on in the same judgment he uses the expres- sions, ' the title of the proprietors to the soil was respected^ ' that title was respected.^ Other instances might be accumulated of a similar use of this word, and if the expression " shall be respected " be of any legal import or virtue whatever, it can mean no less than is stated in the proposition, that the Company should be protected by the United States from the aggressive acts of its own officers and citizens under color of its own authority or laws, or in other words, from any violation or usurpation of its rights in conse- quence of the change of sovereignty. If the Government, as a mere abstraction, could stand by while these rights were gradually usurped and destroyed, at one time by functionaries assuming to act for the public service, and at another by American citizens — claim- ing under the Land and Donation laws — and while redress in the courts was rendered practically impossible by the hostility of public opinion, then the expression had no meaning at all. But this no man will contend ; on the contrary, we must suppose that the ex- pression was carefully considered, and that it was intended to im- port, and does import, a substantial and most important obligation. I am satisfied that after a careful consideration of this proposi- tion, and of the observations in support of it, it will be found to render fairly the true import of the expression, " shall be re- spected," and of the undertaking and obligations of the United States resulting from the article. 12 i N ,'H SECOND PROPOSITION. Having endeavored to show the character of the obligation as- sumed bj the United States, I now proceed to the consideration of the subject matter of that obligation. What were the possessory rights which that Government bound itself should be respected ? They are alleged in the Memorial of the claimants and in the second pro- position of this argument to comprehend everything of appreciable value of which the Hudson's Bay Company was in the possession and enjoyment in the ceded Territory at the date of the Treaty, or in more specific terms : — 1. The undisturbed and perpetual possession and enjoyment of all the posts and establishments with the buildings, and all the land attached, or used in connection with them, and all personal pro- perty. 2. The right of trade. 3. The right of navigating the Columbia River. As introductory to an examination of the scope and meaning of the words upon which this proposition rests, and of the correctness with which their meaning is rendered by it, reference must be had to the brief sketch already given of the nature of the rights and powers exercised by the Hudson's Bay Company, now for nearly two centuries, on the eastern side of the Rocky Mountains. These powers, as already observed, were not those of a mere trading Com- pany, but were political and judicial, and from their amplitude conferred upon the Corporation a quasi sovereign character. They were exercised there by virtue of the direct grant contained in the Charter, but when the Company extended itself over the regions west of the Rocky Mountains, it carried with it, as a matter of fact, the same powers, and held and exercised them there with an au- thority as complete and undisputed as that conveyed by the Charter. This was of necessity, for its servants were the pioneers of commerce and colonization in a country which knew no law or restraint of civilization. The Government of Great Britain was aware of the exercise of all these powers, and not only recognized them, but became, by the interposition of Parliament and of the negotiations of its Secretary of State, a party to the arrangements under which these high functions were exercised. The suggestion by Lord Bathurst of an amalgamation of the North West and 13 Hudson's Bay Companies ; the act of Parliament; the letters of license ; were so many solemn recognitions of the substantial rights of the Company. They were recognitions that that Body was regarded not as an intruder or a trespasser on the public domain of the Empire, but as possessing acquired and admitted rifi'hts in the country, representing there British interests and authority, and fit to be entrusted with the power necessary for repressing crime, and ameliorating the moral condition of its savage inhabitants. The Act of Parliament and the letters of license were, I say, recognitions of the rights of the Company, but they were nothing more. The rights existed independently of them. They had been exercised long before the date of those docu- ments, and all that was new were some additional powers given un- der the Act of Parliament, and the privilege of exclmive trade granted for a limited period. But this grant, as has been fJready said, was of little practical value at that time, for from the state of the country and the condition of the trade, no rivalry was then possible. Indeed the motive for giving the exclusive privilege was not so much commercial as political — a measure of public pohcy for pre- serving the peace, and not an act for enhancing to the grantees the profits of their business. This is shewn by Mr. Ellice's evidence and by the preamble of the Act, to which special reference is made (2 Geo. IV, chap. 66.) The actual position which the claimants held in the North West Territory, in and before the year 1846, is matter of history, and appears as well in public documents and from the narratives of American authors of repute, as from the testimony in the case. The British statement annexed to the Protocol of the 16th De- cember, 1826, in which Mr. Huskisson was one of the commis- sioners, contains the following passages : * " Great Britain affirms, and can distinctly prove, that if not " before, at least in the same and subsequent years, her North " Western Trading Company had by means of their agent, Mr. " Thomson, already established their posts among the Flat-head " and Kootanie tribes, on the head waters of the northern or main ** branch of the Columbia, and were gradually extending them down " the principal stream of that river." * * * * « ♦ Greeahow, App. p. 451, 454, and 455. (( (( u u u u 14 " In the interior of the territory in question the subjects of Great " Britain have had for many years, numerous settlements and trad- *' ing posts ; several of these posts on the tributary streams of the " Columbia, several upon the Columbia itself, some to the north- " -ward and others to the southward of that river ; and they navi- " gate the Columbia as the sole channel for the conveyance of their produce to the British stations nearest the sea, and for the ship- ment of it from thence to Great Britain. It is also by the Colum- bia and its tributary streams that these posts and settlements re- ceive their annual supplies from Great Britain. " To the interests and establishments which British industry " and enterprise have created, Great Britain owes protection. That protection will be given, both as regards settlement and freedom of trade and navigation, with every attention not to infringe the " co-ordinate rights of the United States." And again in reference to the exclusive possession by the Hudson's Bay Company, it is said in the same document (p. 454) , in connection with the proposal to make the River Columbia the boundary between the two nations, " on our part, Great Britain would " have to give up posts and settlements south of the Columbia. On " the part of th'^ United States there could be no reciprocal witli- " drawing from actual occupation, as there is not and never has "been a single American citizen settled north of the Columbia." A reference to Greenhow in the passages already quoted (p. 392) , and to the whole of the chapter 18 from which they are taken, will fully bear out the argument in this respect. In a word, the possessory rights of the Hudson's Bay Company at that time, in the true and complete sense of the term, were rights of property, rights of trade, including rights of navigation, rights of adminis- tering justice and rights of government. Of all these rights they were then effectually in the possession and enjoyment ; and these, according to many and weighty opinions, not restricted to any frag- mentary part of Oregon, but in and over the whole territory. Even at a later period, the old mastery of the Company was manifest in its control over the Indian tribes, in the aid furnished to the United States troops in their war with the natives, and in the rescue of American citizens whose lives were in peril from attacks of the savages. No reasonable man can doubt the extent of its ;l; ' 15 possessions in the coan p.,,451 App. H. See Twiss, p. 21. 17 listurbancc, act under is, I appro" existence of period, they )n which the jxtent of the nd that they 1 an absolute ,ed that the n, or at best ; having no lim to be in- onsidered, is ipon. le possession D the classifi- cts and legal . the Treaty, rond doubt, itory by the tion it held ' been stated irize in order lased. These ir 1821, car- e west of the al important :nown as the ay some time 1 the country ?ort George, r Company in iedinl818.* rd in Greenhow» '\i The British Government knew of the possession of these posts and particularly of Astoria, or Fort George, and by necessary im plication from that knowledge and from oflficial acts, recognized and confirmed it. 2. These establishments were conveyed by the North West Company to the Hudson's Bay Company, by deed (a) dated 26th March, 1821, when the former Company was merged in the latter* which continued to occupy and possess them until long after the date of the Treaty. 3. The merger of the North West Company in the Hudson's Bay Company was in consequence of an examination and discussion had in the parliament of Great Britain, and was brought about at the instance of and by the direct intervention of the Government of that country through one of its Secretaries of State. 4. An Act of Parliament was passed, 2nd Geo. IV. ch. 66 (1821) with a knowledge of the possession of these establishments, and of the trade carried on by the rival Companies, declaring in its pre- amble that a competition existed between them which for some years had kept the country in a state of continual disturbance, and authorizing the grant of a right of exclusive trade, in order to ren- der competition impossible. This Act was drawn up under the in- structions of the late Right Honorable Edward Ellice, a member of Parliament, and then largely interested in and acting for the North West Company. 5. Immmediately after the passing of this Act of Parliament on the 5th Dec, 1821, the license of exclusive trade (Doc. Ev. A 4.) was granted, declaring in its preamble that the Hudson's Bay and North West Companies had extended the fur trade over many parts of North America which had not before been explored, and based expressly upon the deed of agreement between the two companies therein specially referred to, and by which the establishments already mentioned and all the rights of the North West Company were conveyed to the Hudson's Bay Company ; the Government thus becoming a consenting party, not only to the former possessions of the North West Company, but to the conveyance of them to the present claimants. 'a) Doc. Et. a 2, p. 277. B ! J i I r' 18 The provision in the license entrusting the administration of civil and criminal justice in the Territory in a degree to the Hudson's Bay Company, shews that the Government of Great Bri- toin was aware of the extent and the permanent character of its establishments therein. These provisions, and indeed the whole tenor of the Letters Patent, imply territorial establishments and actual possession of the country. 6. The second License in 1838, (Doc. Ev. A 5, p. 213) with similar admissions and provisions, goes further, and indicates the view of the British Government of the importance and extent of the grant, by making a special reservation of its right to erect colonial governments in the territory. Nothing can more clearly show the extensiveness of the power and rights of the Company as regarded by the authorities of Great Britain than this particular reservation of a sovereign power. 7. The British Statement annexed to the Protocol of the 16tli December 1826, distinctly and repeatedly affirms the establish- ment and possession of Posts, as well to the southward as to the northward of the Columbia, by British subjects (necessarily meaning the North West and Hudson's Bay Companies) ; and in strong and pointed terms avows the deteruuT\ation of the govern- ment to protect " the interests and estabiisiiments which British " industry and enterprize have created " both as regards settle- ment, freedom of trade, and navigation. 8. The country known as Oregon, extended far to the north of the 49th parallel of north latitude. It reached to the 54th degree and was all included in the claim of the United States. The establishments of the Hudson's Bay Company over the whole region, originated in precisely the same manner, and under the same circumstances as those on the Columbia River. They were, indeed, parts of the entire system of settlements in Oregon, comprehended in the recognition already stated. And the Bri- tish Government granted in its confirmations of title to lands there, 3080 acres of ^land in Vancouver's Island, which as shown by actual sales, were worth more than the whole of the present land claim at Fort Vancouver. This was done on the ground that the title of the Company was good in equity and that the Government was bound to complete it. The question of 19 tration of ee to the jrreat Bri- cter of it3 the whole aents and 213) with icates the extent of to erect >re clearly )mpany as particular 1 ' the 16th establish- ird as to ■ ''.' lecessarily " ) ; and in i ■1 le govern- 3h British w '4 [•ds settle- > north of th degree tes. The • 'h the whole inder the bey were, Oregon, i the Bri- to lands m which as m le of the m e on the m [uity and uestion of , 1 title to this tract was at one time submitted for decision to the Judicial Committee of the Privy Council in England, but was with- drawn, and the right of the Company as proprietor was admitted and confirmed. (Doc. Ev. F 20 a. b. c. d.) This seems to me to complete the evidence of a title to the lands in Oregon as between Great Britain and the Hudson's Bay Company, which cannot with any reason or semblance of fairness be contested. Two objections, however, have been suggested. It is said, 1st, That the Convention of 1818 between Great Britain and the United States, concluded both parties from obtaining any rights by settle- ment. It might be urged in reply to this, that the possession of the claimants through the North West Company of considerable portions of the land claimed, was anterior to that date. But it is not necessary to rest upon this fact, for the effect of the conven- tion of 1818 was not to deny to either party his right in the terri- tory, or in other words, to give to either an exclusive right there ; it was, on the contrary, to establish that each might occupy freely without hindrance by the other. The words of the convention * are that, " it is -agreed that any country that may be claimed by " either party on the North West Coast of America, westward of " the Stony Mountains, shall together with its harbors, &c., be free " and open for the term of ten years, to the vessels, citizens and " subjects of the two powers, without prejudice to the claims of " either." These provisions were afterwards, in 1827, renewed for an indefinite period. Greenhow says in relation to it (p. 390) : " As the advantages offered to the citizens or subjects of the two " nations are not defined, the terms of the convention relating to " them are to be understood in their most extensive, favorable " sense ; including the privilege, not only of fishing, hunting and " trading with the natives, but also of clearing and cultivating the " ground, and using or disposing of the products of such labor in " any peaceful way : of erecting buildings for residence or other " purposes, and making dams, dikes, canals, bridges, and any other " works which the private citizens or subjects of the parties might " erect or make in their own countries." • Greenhow App. K, p. 467. 20 The conventions were in effect an admission of joint occupancy.* There was in them nothing to prevent the settlement of British sub- jects or of American citizens in the country. All that was wanted to legalize these settlements of the one class or of the other in rela- tion to its own Government, was the recognition and consent of such Government. Of course, in finally adopting a boundary, each Government would take care to protect its own subjects in the rights derived from itself. This, Great Britain did by the Treaty ; but even if it had failed to do so, the right of property of the Hud- son's Bay Company would not have been extinguished. It would have been protected, if not by strict rules of International Law, at least by principles of equity so broad and manifest that they could not have been disregarded ; for under the terms of these conven- tions and of the Oregon Boundary Treaty, as already shewn, the claimants could by no possible construction, have been considered as trespassers or usurpers upon the soil. They might not have been permitted to continue their trade as a foreign corporation without a special convention, but they would have been entitled to a fair indemnity, on the United States taking possession of their property. Such must have been the view of the statesmen engaged in making the Treaty. It is a necessary consequence of recognized principles, sustained by the authoritative opinion of the best publi- cists.! A reference to cases is g^.ven below. They are confined to cases in the Supreme Court of the United States, as questions of this class have more frequently arisen there than elsewhere, and have been treated with signal ability and learning. The doctrine is well laid down in the case of Strother vs. Lucas cited below. :|: m • Greenbow App. K. No. 2, p. 467 : No. 6, p. 471. t Vattel, B. 3, c. 13, sec. 200. t Strother vs. Lucas, 12 Peters, 435, 439, 446, 447. Society for Propagating the Gospel vs. New Haven, 8 Wh. 481 et seq Mitchell vs. United States, 9 Peters, 711, 733 et seq. United States vs. Wiggins, 14 Peters, 349, 350. United States vs. Arredondo, 13 Peters, 133. United States vs. Kingsley, 12 Peters, 484. Mutual Assurance Society vs. Watts, 1 Wh. 282. Smith vs. United States, 4 Peters, 511, 512. Delassus vs. United States, 9 Peters, 133. 21 The claim of the Hudson's Bay Company then had a basis in public law. It will be shewn hereafter that the Treaty of 1846 admitted, confirmed and enlarged that claim. It superadded to the obligation founded injustice and the Law of Nations, the spe- cial assumption of an obligation to respect the rights of the Com- pany not for a limited time or in a qualified manner, but perpe- tually and absolutely. A second objection made to the possession or title of the claim- ants, is that it was limited as to time by the terms of the Licenses, granted the one in 1821 and the other in 1838. This objection rests on an entire misconception. These Licenses originated nothing, granted nothing, but a privilege of exclusiveness. As to the limi- tation of twenty years, it was made necessary by the terms of the statute, and that limit was inserted in the statute upon the sugges- tion and at the instance of Mr, Ellice acting for the Company. The statute was in fact passed for the Company, and the license of exclusive trade would have been renewed as a matter of course, or the rights and interests of the Company have been protected in some other satisfactory manner. The answer to the objection has been already given by showing that the substantial rights of the Com- pany were antecedent to the Licenses and entirely independent of them. They were morely m\ incident growing out of circumstances which rendered necossar} the intervention of the Government to prevent violence and bloodshed, and wore in fact a measure of po- lice in the form of a grant of a commercial privilege. They recog- nized, but neither constituted nor increaaed the rights of the Com- pany in the trading posts and other possessions. As to their trade they added si»Tr,ctliing which may or may not have made it more vaivi'.^le, but whi3h certainly had not the effect of taking it away. The possession of the country, the trading establishments, the trade itself, existed long before, and it was for the special reason that they existed, and in order to prevent dangerous competition and distur- bances, that the added right of excluding rival traders was given. This right was of little or no value, or practical utility, and when it expired it left the Comj- ..ny with all the substantial rights which existed independently of it. I am satisfied that this is a true and sufficient answer to this objection, and without further remark I submit it for consideration. m 22 The conclusion upon the foregoing statement of facts, and of docu- mentary evidence anterior to the year 1846, and of the legal infer- ences based upon them is, that taken together, they constitute a body of proof of admitted title, in so far as Great Britain is con- cerned, which it is impossible to controvert or doubt. 2nd. Having exposed the substantial nature of the title of the claimants, as derived from facts and documentary evidence of con- sent and recognition by Great Britain anterior in date to 1846, I have, in the next place, to request attention to the admissions and confirmations of that title contained in the Oregon Boundary Treaty itself, as alleged in my second proposition. It has already been suggested that the Treaty of 1846 is to be regarded as a compromise upon unrecognised claims, and not as a declaration and adjustment of pre-existing rights. It is therefore not to be construed by the rules which apply to that class of boun- dary treaties in which the antecedent rights of each of the parties to his portion of the divided territory is admitted. There is here no admission of the kind. It is indeed curious to observe with what care all language is avoided which could justify such an inter- pretation. The nature of the Treaty is declared in its preamble to be the desirableness, for the future welfare of both countries, of removing the state of doubt and uncertainty respecting the sove- reignty and government of the territory to which it relates, and thereupon an amicable compromise is made, not for bounding but for dividing it. This language might apply equally well to the division of territory in which both parties had a common and equal right, or to which neither party had shewn any right at all, but which they were mutually appropriating in certain proportions by special agreement. The question, which portion of the territory really belonged to one party, and which to the other, before the appropriation, is avoided. All previous ownership is unasserted. And as if to shew more conclusively, that such is the basis of the Treaty, the 3rd Article speaks of the future appropriation of the Territory as provided by the first Article. The legal con£>> '.{ lence of these forms of expression is, that any ownership which tiie son- tracting parties may have claimed, was either a joint-o.viiorcMp in the undivided territory, or it was virtually and mutually denied that any ownership existed, in the one or the other, and ':'.^- if*' 23 iocu- nfer- te a con- the right of property was recognized only as dating from the Treaty. Thus the effect of the Treaty upon the territory south of the 49th degree of north latitude, then occupied by the Hudson's Bay Company, was an appropriation of it to the United States from that date, involving a virtual denial to that Govern- ment of any previous exclusive right of property in it. It is important not to lose sight of this fact, as it aids materially a right understanding as well of the position and intention of the parties in relation to each other, and to the subject-matter of the Treaty, as of the nature and extent of the obligation assumed by the United States. It removes also the application of the rule which prevails in ordinary boundary treaties, by which all titles granted by or derived from the Government, whose rights are shewn by the settlement of the boundary to be unfounded, are rendered null, and makes applicable the converse rule, by which, in cases of rightful possession by a Government which afterwards cedes its rights, all its previous grants and titles in the ceded territory are binding upon the new sovereignty. The expressions found in the 3rd Article of the Treaty, to which I now proceed, are, that "the possessory rights of the Hudson's " Bay Company, and of all British subjects who maybe already in *' the occupation of land or other property lawfully acquired within "• i\v .did territory, shall be respected." With regard to that por- tii 11 v>: the Article which relates to British subjects, it is to be re- mar cd, Ibat its only possible application, in view of the facts under which it was written, must have been to the persons in the employ- luent of the claimants who might have been in the occupancy of lands with their consent. The testimony given by Mr. Lowe (pp. 17, 18) and several other witnesses for the claimants shews that under apprehensions for the future, and in order to protect their property a number of the servants of the Compsny were directed ^■0 enter land claims according to a law of the Provisional Gov- jrnment o'" Oregon ; but the land continued without change to remain in the possession of the Company. These claims being held merely for the use and benefit of the Company were afterwards formally abandoned in its favor. This however was of no importance ; for if it had not been done, there was no occupancy or improvement by the claimants to give them any title under the law. The numerous s ■ 24 i; extracts from the Record office filed by the Respondents are a needless supplement to the evidence of the claimants in this respect ; for they merely show in another shape what was sufficiently proved before. There were no other British subjects then in the country none who did occupy or could have occur '.^^ land lawfully acquired from any other source than the permission of their employers. Such was tho fact independently of the prohibition contained in the grant of excli • trade. The expression lawfully acquired, used under these . nmstances, indicates therefore the opinion then entertained by both contracting parties, that land might be so lawfully acquired from the Company. But the admission that they could give title necessarily implies that they were regarded as themselves possessing title. From these premises there results a two-fold conclusion : 1st, That the right of the Hudson's Bay Company to the land held by then^ was then regarded as a right of ownership ; and 2nd, That the Article is to be read, not as contem- plating two separate interests, but as carefully intended to compre- hend all the interests of the Hudson's Bay Company, and of it alone. This interpretation is consistent with the condition of the country and state of the facts at that period, and with the pro- hibitions contained in the Letters of License. Any other conclusion leads to the absurd result, that this phrase of the Article relating to British subjects was adopted without practical meaning or possible application. There is another strong indication that the United States as well as Great Britain regarded the right of the Company as a right of ownership. It is to be found in the 4th Article of the Treaty, relating to the property of the Puget Sound Agricultural Company. The language of the Article is as follows : " The farms, lands, and other property of every description " belonging to the Puget Sound Agricultural Company on the "north side of the Columbia River, shall be confirmed to the said " Company. In case, however, the situation of those farms and " lands should be considered by the United States to be of public and " political importance, and the United States Government should " signify a desire to obtain possession of the whole or of any part " thereof, the property so required shall be transferred to the said " Government at a proper valuation to be agreed upon between the " parties." 25 No man can fairly deny that this language imports an admission of a right of property. But the lands referred to in this article were in the same territory, and acquired and held in the same manner and under precisely the same conditions, as the lands of the Hudson's Bay Company, subject, however, to an important excep- tion ; viz., that those lands were acquired and held through the permission of that Company. If then there was a right of property in the one, there certainly was, by stronger reason, in the other. If it be asked why the same form of expression was not adopted in both articles, the answer is obvious. In the 4th article, the rights to be preserved were of a simple nature and clearly defined. The Puget Sound Agricultural Company, an unchartered Joint Stock Association, held these lands for agricultural purposes only, and it was an easy matter to ascertain and deal with their rights. They were either to receive a formal title to the property or to be bought out. But the Hudson's Bay Company was a great and powerful corporation, not only possessed of large tracts of land, but having other important interests, in its right of trade and of navigation for which the possession and use of its posts and establishments as a whole were indispensable, and added to these certain higher rights, of a political and judicial character. All these rights and interests, which neither party to the Treaty could approximately define, and which the Hudson's Bay Company, being no party to it, was not called upon to do, the United States could not safely undertake to confirm or to buy out. The comprehensive term, that the " pos- sessory rights " should be " respected," was therefore used, and a more comprehensive term it would be difficult to find. For it includes not only things of which the Company had the ownership, but all things corporeal and incorporeal of which they then had the possession and enjoyment, and even what before might have been a precarious possession, was by these terms of the Treaty converted into an absolute and perpetual right. Having shewn the position occupied by the claimants in the North West Territory ; the nature of the authority and powers held and exercised by them there ; the precise character and foundation of their possession and title ; and the extent of the obligation assumed by the United States under the Treaty of 1846, I now proceed to show by the proof of record, the description and extent 26 of property ^^^ intereits indicated hy the expression, " possessory rights," as used in the Treaty and comprehended within such pos- session and title. And in order to avoid useless repetition, I pro- pose to submit in the same connection the evidence of their value as stated in the third proposition. The evidence relating to the posts and establishments with the land attached, and the buildings and personal property, will be firs* presented, taking them up in the order in which they occur in the Memorial. Then will follow the evidence relating to the extent and value of the Company's trade, and finally that concerning the navigation of the Columbia River. EVIDENCE ON THE SECOND AND THIRD PROPOSITIONS. In endeavouring to arrive at a just conclusion upon the extent and value of the property and rights of the Company, a careful discrimination must be made between the different kinds of testimony adduced, and the consequent weight which is to be attached to the statem3nts of the several witnesses examined on the one side and on the other. This discrimination will be more particularly applied in presenting in detail the several depositions, but it may now be observed, as a general difference between the estimates made in the evidence for the Company, and those found in tho counter evidence of the United States, that the former are based upon positive and precise knowledge, derived from long and intimate acquaintance with the property, the trade and the whole subject to which they relate, while, with few exceptions) the counter estimates are derived from persons whose opportuni" ties for forming a judgment were occasional and imperfect. Another important difference is, that few of the witnesses of the claimants have any motive influencing them in favor of the clai ji, and several have an interest decidedly hostile to it. But with respect to the witnesses for the United States, it may be fairly stated of most of them, that there is in their evidence so much of hostile feeling, more or less manifest, that no prudent man acting in a judicial quality can safely assume it as a basis for his decision. I content myself with merely noticing at this time these obvious and important differences of character between the testimony of the claimants and that adverse to them. It will be my duty hereafter 27 the •» 1 3 to establish, by reference to the depositions themselves, how marked and substantial these differences are in particular and numerous cases. They must be carefully considered not only as affecting the credibility of witnesses, but also in connection with the disadvan- tages 'Tnder which the claimants have labored in makin<» their proof. For, added to the difficulties set forth in the Memorial, arising from the long lapse of time, from depredations upon the property, from natural decay, and from the death of the most important wit- nesses, is the hostile feeling alluded to, which pervades and influences the whole population where alone witnesses were to be sought. This feeling, in many instances, results from the fact that the witness is himself in the possession of lands belonging to the claimants, in others, from personal disagreement with the Company or some one of its officers, and in all cases is either originated or intensified by a national dislike to a foreign corporation of great power, holding large possessions and exercising extensive influence in their midst. It is not too much to say that this sentiment, amounting to bitter hatred, is all but universal, and that while many of the witnesses for the defence are unwilling to avow it, others, of a bolder charac- ter, frankly admit the fact. The monstrous hardihood of the Company in making its claim, is the popular theme of pohticians, and furnishes an inexhaustible topic of declamation and invective to the local press, wli' i during the whole time of taking evidence in Oregon, spared no effort to encourage witnesses on the one side, and to denounce and deter them on the other. Every man who could say anything true or conjectural, was eager to testify against the unpopular body Avhich appears as claimant. Public men, or those intending to become such, made political capital out of it. Others went with the current ; many of them gratifying either their vindictiveness, or their interest, or both; while, on the other hand, those in possession of knowledge which would sustain the claim, were naturally unwilling to make themselves obnoxious to all around them, and to incur the imputation of want of patriotism, and not unlikely, of baseness and corruption. All this was the more mis- chievous as witnesses could not be brought up by compulsory pro- cess. A reference to the file of local newspapers produced, (Doc. Ev. F 22, p. 480), which might have been increased to a very great number, and to some of the depositions which will be here- f I tl II I 28 after noticed, will show how amplj these observations are sustained by facts. But notwithstanding all these disadvantages, it will be found that the depositions in favor of the claimants present a body of evidence which is compact and satisfactory beyond what could reasonably have been expected, and which, in its material points, the defence, with all its odds of great advantages used with the highest ability and the most energetic efforts, has been unable to overthrow. I propose to take up the evidence relating to the various par- ticulars of the claim in the order in which they are stated in the Memorial, first going over the material facts stated by the claimants' witnesses ; and then giving a comparative exposition of the depo- sitions for the defence, in so far as they have any bearing upon the questions submitted. The possession by the Hudson's Bay Company necessary to sustain its claim, ic, after the Treaty, the first essential fact to be shown. This has already been done in a great measure by the docu- mentary evidence to which reference has been made in the preceding pages of this argument. The testimony which bears upon the sub- ject remains to be presented. In entering upon the examination of the depositions, it is necessary to remember that the date of the possession relied upon is June, 1846. The possessory rights of the Hudson's Bay Company in which they were entitled under the Treaty to be protected by the United States, were those held by them at that time, and no decline of this possession, in its extent or in the energy of its assertion afterwards, can affect these rights as they then existed. Nothing but the unequivocal alienation of them voluntarily, and free from any form of pressure, direct or indirect, arising from change of sovereignty, can afford a justification for confining them within limits narrower than those which existed at the conventional point fixed by the terms of the Treaty. Mr. Coxe, in his elaborate and very able opinion on the subject of the rights of the Hudson's Bay Company, to be found on page 5 of the Pamphlet of Opinions on that subject, says : — " It must, I " apprehend, be conceded that the possessory rights of the Company '* are secured by the Treaty as they existed at its date. Under the * ' authority of the British Government they appear, with the knowledge '* and at least the implied sanction of that Government, to have 29 " exercised an unlimited authority, as well to grant to others, as also *' to appropriate in severalty, the absolute proprietorship of such lands " as they pleased. No particular formality was prescribed or seems " to have been required or followed in segregating these particular *' portions from the common mass, and indeed any such would obvi- " ously have been unnecessary and superfluous. * « * " Any act indicating the intention must necessarily have been all- « sufficient." The precise fact then to be established in this part of the case, is : that in June, 1846, the Hudson's Bay Company was in the possession and enjoyment of the lands and posts described in the Memorial, and for which compensation is thereby claimed. The testimony on this subject is partly general, shewing the comprehensive and complete mastery and occupation which the Company had over the Ljngth and breadth of the country then known as Oregon, and partly special, applying to particular posts and tracts of land lying within designated boundaries. The general fact of possession by the Hudson's Bay Company, and of its control and authority over the whole region known as Oregon, at the date of the Treaty, is fully established, indepen- dently of the depositions, but it is also confirmed in these by the concurrent statements of numerous witnesses of the highest character on both sides. Indeed, the perusal of the whole body of evidence leaves no room for doubt upon this fact ; the statements showing it, which are ex- plicit and frequent, occur, for the most part, in connection with other subjects, and in order to avoid repetition will be noticed in com- menting severally upon the depositions. I pass at present to the evidence which applies specially to the posts and establishments with the buildings and tracts of land de- signated in the memorial. These are 14 in number. The first of them and chief in importance and value is VANCOUVER. The post at Vancouver, with the buildings and tract of land possessed by the Company is declared to have been worth X 175,000 sterling--equal to $851,666.67. Of this sum£75,000 or $365,000 are declared to be the value of the land, which is described as ffT 30 i III ' If 1 i , 'i> extending in front along the banks of the Columbia River about 25 miles, and backward about ten miles. The Fort and buildings are estimated at £100,000, equal to $486,666.67. It is believed, not merely that the allegations of the claimants in relation to this post have been abundantly proved, but that the estimate put upon the land there is shown by the evidence to be far below its actual value at any time between the date of the treaty and the year 1860, when the claimants were forced to aban- don it, or the time of making the present claim. An application has therefore been submitted by motion to increase the claim for the land to the sum of X 160,000 stg. equal to 1778,666.66 in order to meet the proof of record. The best history and description of the post are given by Gov- ernor Douglas in his answer to the 4th interrogatory, which will be found on page 51 of the printed evidence, and by Mr. Mactavish in his answer printed on page 198 and the two following pages. These statements are well worth a careful consideration as giving a key to the importance of this post and to the general extent of the Com- pany's operations. The post was established in 1825 Douglas, (p. 50, and p. 197). — Governor Douglas describes the lands held there by the Company in the following terms : "The lands used by the Company in the year 1846, and long pre- " viously, for pasturage and tillage in the immediate neighborhood " of Fort Vancouver, embraced a frontage on the Columbia River "of at least twenty-five miles, commencing at a point a few miles " above the saw mill, following the main river down to the junction '' of the " Cath-le-poolt " River, where I think the claim ended. '* The depth of this claim extended to the country north of the Colum- " bia River, ten miles throughout its whole length, at right angles " with its frontage. This land claim, owing to the nature of the " country, was found insufficient for the Company's purposes, the " pasturage being altogether too limited for the support of the var- " ious kinds of stock usually kept or raised by them." The description given by Mr. Mactavish embraces the same tract and is yet more precise. He says p. 199 : " The land used by the company at Fort Vancouver for the pur. " poses of their business, in 1846, and for years previous, commenced " at a point on the Columbia River, about two miles above the saw i % ■*i 31 " mill, thence following that river down through its meanderings, until " joined by a small stream, called the Cath-le-poolt, nearly opposite " to the town in Oregon, now known as St. Helens ; this would make " a frontage on the Columbia River of from twenty-five to thirty " miles ; northward, at either end, the claim would run inland for " about ten miles. This land was used by the company for tillage " and pasturage. In the year 1846, the company had, at Vancouver, " large bands of horses, horned cattle, and pigs, besides sheep ; and " in order to feed such a number of animals much land was required, " particularly in the winter seasons. " The company made use of all their posts and establishments for " trading purposes and for defence, and exercised ownership over '* them and the lands adjacent to them, in the same manner, for pas- " turage and tillage, in order to secure supplies of food for their busi- <* ness ; timbered land was also necessary at each establishment for " building purposes, fencing, fuel, &c. Up to tbo date of the treaty, " in 1846, there were no adverse claimants to land so occupied by " the company at any of the posts ; neither at that period were there " any parties who disputed the company's rights to the land in ques- " tion." The account given by these gentlemen of the extent and value of the post of the Hudson's Bay Company at Vancouver, show that, in 1846, and for a year or two afterwards, the rights of the company in it as now claimed were unchallenged, and that it had the undisputed occupation, use and control of at least the whole tract of land described in the memorial. This account is amply sustained by a great number of witnesses — indeed by all who are capable from personal knowledge of testifying to the con- ditions of things in 1846. Lowe, (pp. 8 and 9). — Mr. Lowe says that in 1846, the " Com- " pany made use of land for farming and pasturage extending " along the Columbia River from a point about one or two miles " above the saw-mill to a small stream falling into the Columbia " opposite the town now known as St. Helens, in the State of " Oregon, a frontage of about 31 miles, and extending back from the " river in some places for a distance of 3 or 4 miles, and in others as " much as 12 or 15 miles. They had also dairies and farms on Sau- " vies Island. * * * Lying back of the fort there were several plains r" 32 ■n ii divided from each other by belts of timber — those known as the " 1st, 2nd and 3rd plains had each been farmed ; the 4th and " Cnimas plains were used for pasturage. There was also a large *' extent of open ground back of the saw-mill, known as the mill " plain, all of which was undoi cultiavtion. Adjoining the fort was <' the fort-plain ; while some distance lower down the river were *' situated the lower plains, where a good deal of land had been *' under cultivation." McKixLAY, (pp. 81, 82).— Mr. McKinlay says:— "The ground " occupied by the ma'n fort at Vancouver and immediate buildings " surrounding it, including the farthest barns, Dundas Castle, and all outbuildings, " would be at least two miles and a half along the " river front, and from three quarters to a mile wide, and if the " cemetery is to be included, it would be over a mile. '"When 1 was there in 1840, there were large tracts of land fenced " and cultivated, on what were known as the first, second, third and " fourth plains immediately behind the fort. I was not on the Mill " Plain in 184'J, to the best of my recollection. On what is called *' the lower plain, there were also very large tracts of land fenced and " cultivated under wheat and other grains. The Company had tre- <' mendous bands of cattle at that time, that ranged from the Prairie *' du Thd, near Cape Horn on the Columbia, to the mouth of the Cow- " elitz River ; they went back considerably into that range of hills " which runs parallel with the River Columbia, I should say at least " 15 or 20 miles back. In 1846 I wa?; not over the 1st, 2nd, 3rd, " and 4th plains ; but the Mill Plain, which I then saw, was under full *' cultivation, I suppose to the extent mentioned in the list. I also '' saw the land about the fort in 1846, but do not distinctly lecoUect " going down on the lower plains. As I before stated, my impression " is that there was a great deal more land under cultivation around " the fort than is mentioned in the list. In 1846 the cattle were scat- *' teredall over the section of country I have mentioned, although I " did not ride about as much and notice them as particularly as in " 1840, although I think they were decreased in numbers" ; and he adds in answer to the interrogatories 40 and 41 on cross examina- tion: " I have heard particularly at Vancouver the Company claimed " from something above the mill to the Cath-la-poodle, some ten or ■I Pt 33 " iyrelvQ miles in width, a good deal less than the land I described " as their pasturage. * ♦ * I think the first I heard of the linos of " the Vancouver claim defined as above, was during my stay at " Oregon City after the Treaty of 1846 ; I supposed before, the " claim was more extensive." Mr. Crate, (pp. 106 and 107,) says : "The cattle of the Company " ranged above the saw mills as far as the Prairie du Thd, some ten " miles up. I have sent men up there for cattle and have been up " there myself, and down the Columbia River below the Cath-la-poo- " die, near the Cowlitz River. 1 have been there for cattle myself. " The cattle and stock ranged back from the river about ten " miles. Opposite the saw mill there was a large island in the river, " where we procured goose grass for the cattle in the winter, keeping " a boat's crew for that purpose, and sending there nearly every " day. ** In this tract there were several plains ; Mill Plain, Ijt, 2nd, " 3rd, and 4th Plains, Fort Plain and Lower Plain, also 6th Plain " and Le Camass Plain and Prairie du Th6. There was a large amount " of land fenced and cultivated. There were several dairies in this " tract, and one on an island opposite the fort known of late years " as Hayden's Island, so called from the person in possession. There " were roads all over this tract made by the Company. 1 made the " road from the saw mill to the Mill Plain, which is about a mile from " the mill and from that plain to the Fourth Plain, and from that " plain to the ' Camass Plain' and the Prairie du Th4. I built seve- " ral small bridges. These roads were expensive in consequence of " the quantity of clearing necessary to open them and keep them in " repair." And on p. 118 : — " I always understood the Company " claimed from the Prairie du Th^, 10 or 12 miles above the saw " mill, down below the Cath-lapoodle, near to the Cowelitz River, " and 10 or 12 miles in width ; I also understood it to include " Sauvies Island, Hayden's or Menzie's Island, and the Saw Mill " Island ; I always understood this from my first coming into the " country." Mr. Simmons says p. 132 :— " The Company had large quai'tities " of horses, cattle and sheep ; they ranged from Prairie duTh^ above " the fort, down below the fort to the Cath-la-poodle, a distance of " from twenty-five or thirty miles. The biggest portion of it is good " pasture land. From the fort to the Cath-la-poodle and above the c 34 tu Hit S ■' mi^ I " fort it is not so good. There were three dairies ; I cannot say " whether there were any more. There were a great many milch " cows, but 1 cannot say how many * * * I cannot state the exact " quantity of farming land occupied by the Company there ; altogether " they had four farms under cultivation. The farm at Mill Plain " aoout six miles above the Fort was a large farm. The next farm " was adjoining the fort. The third farm was below t' e fort ; that " also was a large farm. The fourth farm was then unenclosed, the " building and fences having b^en recently destroyed by fire." In addition to these witnesses, there is the evidence of Dr. Tuzo, who camo to Vancouver at a later period, 1853, and that of Mr. Giddings, Acting Surveyor-General of Washington terri- tory (p. 142-3), who proves the map representing the public sur- veys, and the tract of land claimed by the Hudson's Bay Company. (See map H fyled by claimants.) A number of other witnesses of the claimants speak more generally to the same effect ; and of those examined in behalf of the United States, many will be found to confirm the fact of the use and possession by the Hudson's Bay Company in 1846 of the tract of land at Vancouver described in the memorial, and shewn in the map. In fact, it may be safely asserted, that no evidence of the United States applicable to that date really contradicts the claimants on this point. The question raised by the former is that, although the Company used all these lands for certain purposes, they had legal and exclusive possession of those only which were enclosed or actually cultivated, and that they held no such'possession over the unenclosed pasture lands and cattle ranges as would give them a title against others entering upon them. The answer to this objection is : In the first place, there was and there could be no adverse-possession at the time the Hudson's Bay Company assumed and used these lands for their own purposes. Tjiey were constantly and continuously so used by them, ani there was no- body to dispute their rights so early as 1846, at which date these rights were permanently fixed. There was, I say, nobody, for it will not be gravely contended that the Indians who came from time to time to the Fort for purposes of trade, and with the acqui- escence of the Company, turned their horses to feed upon the same pastures, thereby disputed or interrupted the possessory rights of 85 sur- •.'j'? ■■■■•, A the Company. Such a pretension would be manifestly and utterly untenable. Then, as to what would constitute acts of possession under the circumstances of the country at that time, we have opinions and judgments of the highest authority which set the mat- ter at rest. Mr. Coxe, in his opinion upon the subject, says,* — " It ctt.mot, in my judgment, and from the evidence accessible to " me, be contended, with any shadow of reason, that actual sur- " vcys, lines of exuct demarcation, enclosures, or anything else " defining and circumscribing the extent of ground thus appro- *' priated or reserved, such as might be necessary in the case of a " private individual asserting an adverse possessory right against " a paramount legal title, can, under any circumstances, be re- ^' quired as an essential foundation or support of the title of the ^' Company. The felling of timber sparsum throughout a tract of " forest land, the pasturing of cattle over plains and hills, are all *' legal acts of ownership, and, under circumstances, would consti- *' tute the most conclusive evidence of such possessory rights as *' are recognized and protectedin the treaty of June, 1846." Mr. Webster (p. 6) says : '' The local extent of these possessory rights *' it may be in some degree difficult to fix or define. This must *' depend upon facts and the nature of the occupation, wherever •' there has been a possession, according to the use originally in- ^' tenaed, there and to that extent the possessory right attaches. *' On this part of the case, concurring with Mr. Coxe, I have *' nothing to add to his remarks." In Mr. Stantr>,!'s opinion (p. 80, 31) the subject is dealt with most coacli-.^i/ely :'n the following terms : — " They [the Company] arc not to be in-ited to actual *' erections, enclosures, or improvements. Their possessory right is not to be estimated by the mere possesaw pedis. The term of the treaty ' possessory rights' being a relative term, is to be *' interpreted according to the subject-matter, the nature and pur- *' pose of possession, even in case of intruders without color of *' title, holding against the rightful owner. Settler's possessions " have been dafined in the State of Pennsylvania, where such claims have been much discussed, as embracing the whole of an ii a a * Pamphlet, Opinions upon the Extent and Value of the Possessory Rights of the H. B. Companj,, p. 5. ill ~ ,11 i' ■ ■:;l n ■ ■ » is,-* 'if. ^i J (( (( u (( (< (( (( (( (( (( (( u u u (( (( <( (( (( (( ^^ (( (( <( (( (i; (( (( (( (( <( unseated tract where the settler has entered, claiming and exer- cising ownership, putting up buildings, clearing and fencing more or less, usiny it according to the custom of the country ^ the clear land either as arable, meadow or pasture, and the woodland for obtaining timber as often as the settler shall have occasion for it to answer Ids purpose, ^ f\ % 37 I leave here the fact of the possession of the Hudson's Bay Com- pany as fully established, and proceed to examine the evidence bearing upon the question of value of the land and buildings. The number and extent of the latter, with the estimates of their cost and value, are given at and between two distinct dates, the one in 1846, the other in 1860, when the Company was compelled to abandon the place. A list is fyled marked A, containing a full detail of the buildings at the former period, and the Company considers itself entitled to claim for them a sum which shall not be less than their value as they then existed. The claim to be so paid is grounded upon the facts that the rights of the Company and the obligations of the United States were fixed at that date by the Treaty, and that the deterioration in the condition of the buildings and consequently of. their value were the inevitable result of the failure on the part of the United States to fulfil its obligations under the treaty. It became certain in a short time after t')e treaty that the Hudson's Bay Company could not depend up>P', i-^tfW Bjft ^w rmu ii imn. 63 delay, and that no room should be left for the imputation of a wish to suppress facts, it was acceded to, and the result was a new cross-examination of no less than 952 Interrogatories. The art of asking and repeating questions has, I take it, never been more marvellously exercised, and seldom with a less substantial result. Of these 1052 Cross-Interrogatories, I deem it necessary to notice only a very few, and these chiefly relating to the boundaries of the land claimed at Vancouver, and to the time at which the claim of a specific limit was made. In order fully to understand Mr. Mac- tavish's answers, it is necessary to note, that his replies, on all mat- ters which fell within his particular department or which he person- ally knew, are fixed and positive ; while those resting upon general impressions or the received opinions of those around him, and upon information derived from others, are, of course, less certain and decided. Of the latter class are his statements in relation to the precise boundaries of the claim at Vancouver, and the time and mode of making such claim. In 1846 and previously, his situation there gave him nothing to do with the general afiairs of the Company, and so he continued up to September, 1854. Of the governing officers during that period. Sir James Douglas alone survives. Mr. Mactavish's knowledge upon the subject of the claim was that of a subordinate officer in a different department, whose duty it was not, to inform himself upon it, and who, in fact, had no precise knowledge concerning it. All that he knew personally was, that the Company cultivated a consideraible quantity of land at Vancouver, and that a large tract was occupied for the pasturage of its numerous flocks and herds. These were facts within his personal knowledge, but as to the precise extent and boundaries of the pasturage, his statements rested upon the general understanding and the received impressions of those around him, and he had no further knowledge on the sub- ject. This is apparent from his answers, upon his first cross-exam- inations, to Int. 10 and following Ints. to 18, (p. 223-4) ; and to Cross-Ints. 23-24 (p. 225). These answers show the simple truth as to the nature and extent of his knowledge on these points, and the crucial process to which he was afterwards subjected, has left the matter just where it was left by them. In his answers, for instance, to all the questions on his second cross-examination, between the numbers 317 and 370, relating to w i (■, t !! M ! 54 boundaries, and to all the other questions relating to the same sub- ject, it is evident that he did not pretend ever to have measured the land or personally to have traced out the boundaries, but that he spoke from the general impression that the limits given by him had long before (he knew not how long) been universally under- stood by the officers and servants of the Company, to indicate the boundaries of the land claimed by it. He saw daily the stock of the Company ranging over large pastures and in remote parts of the tract of land so described, but of course, he could not swear that they went just up to a certain limit in the forest and no fur- ther. The pertinacity with which he is urged in this cross-exam- ination to say that the cattle never went beyond or fell short of these limits, or to use the cross-examiner's favorite and oft re- peated expression, " up to a certain line and no further," is a device which cannot for a moment mislead any practiced mind. The truth undoubtedly is, that the cattle at times far exceeded the limits specified in the Memorial, but they were usually kept within those limits, and the Company defined its claim accordingly. — This is not, therefore, a question of the utmost extent of the cattle range but of the occupation of the lesser area to which the Company is willing to restrict it. Observations of a similar character may be ap- plied to all the questions relating to the claim. One of the puzzles raised by them (Ints. 341-349) is upon the direction of the side Hues from the River. The witness said they ran back in a norther- ly direction. He is mistaken in his cardinal points, but not in the main and only important fact, which is, that the side lines run back ten miles from the Columbia River, whether north or east is of no moment. A reference to the map of Clark county with the boun- dary of the claim marked upon it, produced by the claimants, mark- ed " H " will at once show that no difficulty of that kind ought to have been raised. There is an ambiguity or kind of play upon the word claim, which a moment of examination and thought will explain. Claim is used in different senses at different times. Generally, when used by Mr. Mactavish, in his answers, he means, as he himself declares, simply the use and occupation of the land in question, and he supposes the Company's claim consisted of what it so used and occupied— that is, it claimed to be maintained in all that it had in « gBRr7JTKi i : * ^--'rrij-fmi ii Ti? i Ti-in'r..r:Jit.T !' i! i iw lame sub- oaeasured but that n by him [y under- icate the stock of parts of ot swear i no fur- >ss-exain- short of i oft re- r," is a mpanyis 7 be ap- » puzzles the side norther- >t in the un back is of no le boun- 3, mark- l ought possession in 1846. But as to a claim, in its closer and more tech- nical sftnse, he personally knows nothing about it. It originated, and, as he believes on information from his predecessors, was defined lonf before he was in a position to know anything about it. He never made any such claim or gave any such definition ; personally he never knew whether any body else did. He always speaks of the matter at second hand as having heard of it from Sir James Douglas or Mr. Ogden, (second cross-examination p. 146, 147). But it is perfectly clear that he regarded it as one of those transac- tions which belonged to a past crisis and a period with which he had nothing to do. If there had been a claim and definition he could not change them ; if there had not, he had no authority to supply them. A reference to his letter to Mr, Tilton containing the extract from Mr. Ballenden's letter, shows this conclusively. (See Cross- Int. 647 and following from p. 143 to p. 152). He finds a defini- tion of limits and gives it for what it is worth, disclaiming at the same time all intention of defining the boundaries of the land claim- ed by the Company, and all authority for doing so. It was a per- fectly safe and harmless way of dealing with the pressing demand of the Surveyor General for at least two reasons : 1st, it bound nobody ; and 2ud, very nearly all the land described in Mr. Ballen- den's letter had then been taken possession of by the officers of the United States, or by American citizens, not less than eighty in number claiming under donation laws (See U. S. Doc. Ev. p. 282 and seq., Ebby's report; also p. 206 Whitney's letter ; and evid. of Crate, p. 109, 110, 111). It was of no importance to the Com- pany how much of the land of which they had been so expropriated might be surveyed, and quite idle to raise any question upon so bar- ren a subject, and especially so when discussed with the Surveyor General. How idle it was, is proved by the fact that notwithstanding the description contained in Mr. Ballenden's letter, and in spite of the protests of Mr. Mactavish, the survey was carried over the land of the Company without the least regard to such description. (See official map marked H fyled by claimants, and official map no. 6? fyled by respondents.) In order not to divide this subject, I will here say a few words concerning Mr. Ballenden's letter which is produced in rebuttal under the designation F 3. (p. 435.) ^ 56 I Mr. Bsllerden, it will be observed, succeeded Mr. Ogden at Vancouver. He came to Vancouver first in 1851, five years after the treatv. He seems to have been asked to define the limits and make a survey of what he considered to be the Hudson's Bay Company's possessory rights in so far as regards land on the Columbia River, and throughout the territory of Oregon, and his letter speaks for itself. " Any opinion of mine," he says, " or that " of any other agent, would not be official until submitted to and " approved of by the Governor and Committee of the Hudson's " Bay Company in London," and he adds, " I do not think that " any individual can state the nature or define the limits of the " Company's claim in this territory. To the representatives of *' both Governments must the final decision be left." After these disclaimers he does not pretend to define the claim, but proceeds in cautious language to say : " There is, however, a certain tract of " country in the neighborhood of Vancouver which was for a long " period, (and if our rights were respected) still ought to be in the " sole possession and occupation of the Hudson's Bay Company ; " within these limits I must respectfully request that no survey be " made or claim granted to any person whatsoever without the ap- " probation of the Hudson's Bay Company." " That tract to which I refer commences at a stake and tree- " marked on the north bank of the Columbia river, about two miles. " west of Willow Point ; thence running northerly along the slough " until it meets the outlet of the Lake River ; thence following the "meanders (easterly) of the said river, to the large lake (9^ '' miles), passing on the north bank, until it strikes a small stream " entering the lake on the north-east side ; thence running east " 15° S. 6i miles, to a stake marked between the third and fourth " plains in a swamp ; thence east 22^ S. 4i miles to the Camas " Plains, to a stake marked ; thence south 3i miles, to the Colum- " bia River ; thence following the meanders of said river to the " place of beginning. Also, one small island south of Vancouver, " on the Columbia river." From what source Mr. Ballenden framed this description, it is impossible now to ascertain. It seems to have been entirely a con- ception of his own, for there is no map, or note of survey in the possession of the Company, and no information is given by any wit- [)gden at ears after imits and on's Bay i on the I and his " or that d to and Hudson's hink that its of the atives of iter these oceeds in tract of or a long be in the ompany ; urvey be it the ap- md tree- ;wo miles. le slough •wing the lake (9i 11 stream ing east id fourth ) Camas ! Colum- r to the ness on either side in relation to it. There are, however, several im- portant facts in relation to it which are certain. Ist.-It was furnish- ed by an officer who went to Vancouver only in 1851, five years after the treaty, and long after the Company's stock of cattle had for the most part disappeared. He could, therefore, have had no personal knowledge of the extent of the pasture range in 1846. 2nd. — His description does not, either in respect of extent or of boundary lines, correspond, in any degree, with that given by Sir James Douglas, and Mr. Ogden, and several other witnesses who were at Vancouver in and before the year of the treaty, and furnished by Mr. Ogden to General Smith in 1849, as proved by Gen. Ingalls, (U. S. Ev. Pt. 2, p. 2). 3rd.— The furnishing of that or any other definition, was contrary to direct instructions from the gov- erning body of the Company. But the paragraph of Mr. Ballenden's letter denying the right of any individual to define the claim of the Company, disposes in prin- ciple of the whole ground upon which the innumerable interrogatories relating to the claim and its definition, rest. Not only was there no authority in the officers of the Company to make any definite claim, but no proper occasion or opportunity arose for the Company to do so. In 1846, there was nobody disposed to dispute the pos- session. During the whole of the subsequent time there was a con- stant series of usurpations and aggressions, but nothing was done by the United States to invite the Hudson's Bay Company to present its claim with a precise definition of its nature and limits. Through- out the whole of that period, the rights of the Company were denied virtually, as they now are formally by the present defence. Local officers of the United States might have asked local officers of the Company how much land it claimed, but surely no man will maintain that any answer to such a demand, on the one hand, or any acquiescence in it, on the other, could have bound either prin- cipal party. This was, in effect, the position taken by Mr. Ballenden, based upon special instructions from his superiors. Sir George Simpson, in a letter to Governor Stevens, of the 22nd March, 1854, (Doc. Ev. C 2 b, p. 273) says : " I have already intimated that the Hudson's " Bay and Pu^et Sound Company will recognize no definition or " limitation of their treaty rights, except on the authority of the ff '^j vM II 58 ** parties to the treaty which created them ; and they have accord- « ingly instructed their agents within the Washington Territory not " to perform any act which can compromise them or affect the ques- " tion of the extent or nature of their rights." The question was one arising upon treaty stipulations between two nations, and could be settled by the contracting paaties alone, either by formal convention,or by referring it to a quasi ^ndicml commission. When provision had been made for settling it in the latter mode, the claim, properly so called, was defined, and is to be found in the memorial which is before the present Commission. This claim, I am satisfied, cannot be circumscribed by Mr. Bal- lenden's letter. But even if it were, it would still include a tract of some 60,000 acres, (U. S. Doc. Ev., p. 276) which most of the wit- nesses for the claimants, and many of those for the respon- dents, testify to be of a value far exceeding the amount at which the land claim at Vancouver is stated in the memorial, and the motion in amendment. The whole cross-examination upon that subject is, therefore, an ingenious piece of strategy to divert attention from the broad facts of the claim, but it is nothing more. It will not escape the attention of the Commissioners, that there are numerous points in which Mr. Mactavish, in his cross-examina- tion, has enlarged upon and confirmed his previous testimony. Thus his answers to Ints. 91 & 96, (p. 59-60), contain a history of the causes of the falling off of the trade imputable to the action of the U.S. His answer to 98 (p. 61), shows the imposaibility and the uselessnes of re-occupying Walla- Walla, Boisd, and Fort Hall ; and his answers to Ints. 145, 146, and 147, which are to be coupled with 39 and 40, and also with 178 and 179, are important in explaining and confirm- ing the previous estimates of the value of the buildings ; showing how superior they were in construction to, those of the Military Post to which they are compared by General Ingalls. And the fact stated under Int. 168, that the women and children at Vancouver took refuge in the fort so late as 1856, is significant of the importance of the place. The answers to Ints. 255, and following, to 261, relate to the causes for ceasing to use the saw mills, viz : that the land on which timber should have been cut to supply them was in the possession s 59 of trespassers. The price of timber from 1846 to 1850 is stated under Cross-Ints. following, down to 266, showing that it was very costly. Cross-Ints. 379 and 483, (pp. 104, 119), bring out from the witness clear and detailed descriptions of the land at Vancouver which completely extinguish the attempts to confuse and mystify his knowledge of it by the devices of a subtle cross-examination. The evidence given under the interrogatories following 483, relating to the quality and value of different portions of the land is also very satisfactory. I am not disposed to dwell further upon this extraordinary cross- examination. It may seem that some of the answers in it have been given impatiently and inconsiderately : and this is not to be wondered at when we remember that the witness was constrained and worried for a month and more by nearly 1000 question,^ put with signal adroitness by one counsel, who was the actual examiner, after being prepared in close and constant consultation with another, of whose acknowledged ability and great experience I need not speak. Few men subjected to such a process could wholly escape the perplexity and distraction which it was intended to produce ; but notwithstanding this, the answers taken together are charac- terized by clearness and vigor, whenever they relate to anything of importance, and the cross-examination, as a whole, has added to the value of the former deposition, and to the solidity of the evidence in support of the claim. I deem it my duty however, both to my clients and to the wit- ness, not to pass unnoticed, the peculiar style and spirit of this cross-examination, which, I cannot but think, are at variance with what ought to have prevailed in dealing with a controversy like the present one. It seems to me to have been one of those efforts sometimes made by lawyers to weary and perplex the mind of a witness, so as to confound his knowledge and unsettle all truth. In some cases, and before some tribunals, this kind of procedure, even when grossly unfair and censurable, may succeed, but it is of little use before men who understand all about it and are accustomed to weigh evidence, and to distingush truth from falsehood. Another noticeable feature of the cross-examination is found in that portion of it which is devoted to a searching inquisition into the consultations and conversations between Mr. Mactavish and the 2 1 60 counsel for the claimants, and particularly into the reason why he was examined in Montreal. The questions alluded to, will be found under the numbers from 151 to 156, and again from 180 to 216, occupying the whule of some two days in the examination. They are of no importance in the cause ; for the fact that Mr. Mactavish was the agent of the Company and had taken an active part in prose- cuting its claim, was already proved in the former cross-examina- tion, and in fact, freely admitted. It is difficult to say, therefore, why this long series of questions should have been introduced. The only conceivable object is to show that there was some artful and fraudulent contrivance between Mr. Mactavish and the counsel, for getting the former to swear to something which is not true, or to suppress something which is true. Whether there are any circum- stances to justify this imputation, or whether the position and char- acter of the men against whom it is directed, are such as to warrant its having been made, I leave, without comment, to the judgment of the Commissioners. TESTIMONY FOR THE UNITED STATES Having presented the more important portion of the claimants' evidence respecting Vancouver, which establishes a value very largely exceeding that put upon it in the memorial, I will now submit a brief review of the counter evidence taken by the U. S. applying to that post. I propose to follow the same course with all the depositions in which the testimony is confined to one post or one group of posts having some connection with each other. But when a deposition contains testimony relating to several posts unconnected with each other, or embraces general subjects of nnportance, I shall place the review of it after the statement of the claimant's evidence upon all the posts. This arrangement will save repetition and give as much of order and simplicity as is attainable in a matter over-loaded, as this defence is, with a mass of incongruous testimony upon a great variety of subjects. The observations already maijle upon the strength of national and personal feeling against the Company, are applicable to almost all the witnesses examined. The exceptions, which occur for the most part among the military men, will be acknowledged in the proper places. 11 n why he I be fouud to 216, n. Thej ilactavish t in prose- •^xamina- therefore, 3ed. The rtful and unsel, for rue, or to y circum- and char- 10 warrant judgment claimants' alue very will now the U. S. >urse with 3 one post ich other, '^eral posts abjects of rtement of The witnesses for the respondents amount in number to eighty, about five times the number examined for the claimants. The state- ments made by them must bo classified under different heads. Wo have : — 1. Statements by a large number of them which in a greater or less defireo confirm the evidence of the claimants. These state- ments being sometimes given in a spirit of fairness and in a direct manner, but more frequently drawn from unwilling lips by a search- ing cross-examination. 2. Statements unfavorable to the claim, and contradictory of the evidence in support of it. These are, for the most part, from witnes- ses manifestly hostile in feeling toward the Company, and particularly toward its present claim. 3. Statements on matters which are unimportant, or of which the witness really knows nothing, or so little as to render his testimony worthless. I shall begin with the witnesses in whose depositions statements belonging to the first class are most numerous, although it is to be borne in mind that in nearly all the depositions, isolated statements falling within that class are to be found, either made inadvertently or forced out by Cross-examination. Ingalls. (Pt. l,p. 1.) — The first of the witnesses in whose deposi- tions statements may be found which confirm the evidence of the claimants, is General Ingalls, an officer of high rank, who was stationed at Vancouver as Quarter Master from 1849 to 1852, and again from 1856 to 1866. This gentleman, as shewn by the evi- dence of the claimants, documentary as well as testimonial, was one of the earliest, most able and most absolute of all those who encroach- ed upon and denied their rights. The letters fyled by the claimants (B 4 p. 332 to B 7, and B 11 p. 350 to B 13a, and B 17, 17a p. 363) show how sharp the discussion was between him and the agents of the Company. These antecedents have naturally had their effect upon his testimony, although it would be unjust to impute to him intentional unfairness or misrepresentation. The first statement by General Ingalls, to which I solicit attention, relates to the extent and limits of the Company's land claim at Vancouver. It is important, as great pams have been taken in the defence to create doubt and confusion upon this point. It shows conclusively that the claim was 62 I! ■1 «l ii I then understood, as now defined in the memorial, and was insisted upon by the officers in charge in 1849. It was made the basis of a complaint, and of an appli'*ation for protection from the Military Authorities. " It wa»," says the witness (p. 2), " a matter of com- " plaint by Governor Ogden, Chief Factor of the Hudson's Bay " Company, to General Smith, that his lands were being squatted " upon by settlers, and in that way I came to know about their " claims. The object was to get protection from the Military Authori- " ties. From his representation, the Hudson's Bay Company " claimed a region of country, embracing some twenty-five miles " upon the Columbia River, beginning above what was known as " the Hudson's Bay Company's Saw Mills, and extending down or " nearly to theCath-la-pootl River, and some eight or ten miles in- " land." This description was given by Mr. Ogden officially, and is an answer to the allegations of Gibson and others, concerning expressions made by him to be hereafter noticed. The death of Mr. Ogden gives peculiar weight aud value to this testimony, which establishes two facts : 1st, the extent and limits of the claim in and before 1849, and 2nd, that the lands so claimed by the Company, were then squatted upon by U. S. Settlers, (p. 3, Int. 10). Even itsenciosedlands, of which the witness says (Dep. 2nd, p. 526) that " during the earlier years 2,000 acres were under cultivation," " were gradually absorbed by increasing " settlements until at last the occupation was reduced very nearly " to the stockade, when the Company retired." And when he left, the lands claimed by the Company " were in occupation by the " citizens of the U. S. and the military authorities," It rrr.y, moreover, be remarked from the statement relating to Mr. Ogden, how much the difficulties of the Company, in establish- ing their claim, have been increased by the loss of his thorough personal knowledge of all the facts at the time of, and for several years before and after, the treaty, General Ingalls says also, in his first deposition, (p. 7) of the value of a portion of the land : That in the town of Vancou- ver, in 1860, land was worth from " one hundred to one thou- sand dollars per acre." He purchaser ten acres in 1860 for one thousand dollars, and sold it again for the sair- pi ice. And this land, it is to be remarked, was not on the Uti part i.." ^ 63 of the town site, as he seems to think, nor in fact upon the town site at all, but a good deal below it. His evidence, (p. 14 Cross-Ints. 13, 14, 15, 16), concerning the overflow of the land at Vancouver, and stating that " the farming lands of the river " banks are hardly ever overflowed more than twice in ten years, and " that the efiect is beneficial, as the sedime it is of an alluvial charac- " ler," is useful as being in contradiction of the flippant declarations of other witnesses, who had no knowledge which enabled them to form a true judgment on the subject. For the statements relating to the buildings, reference must be had to both depo'tions, and they must be taken in connection with the Documentary Evidence (A6 & A7 p. 320, 321) by which it is established that some of those buildings were hired by the Military Authorities at a large rent, (170 a month), and that the witness personally leased one of the saw mills for the monthly rent of nearly $1,200 ; and also with the answers (p. 9, Int. 35, of the claimants, 1st Dep.) relating to the high price of labor and timber in 1849 ; and (p. 12, 13 Cross-Int. 7), to the cost of ofli- cers quarters, built of logs, amounting to some $7,000 or $8,000 each. Most, if not a'l, lit says, of the buildings of the Company in his first deposiKoi), refers to their condition in 1860 (p. 5). It is generally unfavorable, but not sufficiently precise to require a further separate notice. The observations upon the statements contained in the second deposition will apply to the whole subject. In this latter deposition he speaks more fully and positively of the buildings, and puts an estimate upon the post at Vancouver (p. 526), including in that term [see Cross-Int. 47, p. 536] " the " chief factor's house, the bachelors' block for officers and clerks, " the office, the storehouses, and the blacksmith's shop, surrounded " by the stockade." He declares (p. 525) that he considered the military post there, which he estimates at $50,000, was worth as much and had cost more than the H. B. Co.'s post, and further, that although he could not have built the Company's post there for $50,000 in 1849, yet that he believ:^3 he could have done it for that, three years earlier or later, with the facilities existing at those periods. This is a mere conjecture upon a subject on which he had not hazarded an opinion in his first examination fourteen months 64 I before. If he intended to indicate in his valuation of $50,000 all the Company's buildings at Vancouver it is enormously erroneous. Apart from the valuations by the claimants' witnesses, the lowest of which exceeds it tenfold, it is $25,000 less than the estimate given by the respondents' witness, Major McFeely, in 1853 (p. 120-123), and $50,000 less than that given by Captain Howard in 1852-3, (p. 66). It is also in strong contrast with the estimate (p. 131-133) of his Chief, General Vinton, which will be more particularly noticed hereafter on p. 72. Indeed, I cannot recon- cile General Ingalls' estimate with this otficial valuation, nor with the statement contained in his letter (Doc. Ev., B. 7, p. 342), that the military post at Vancouver cost $150,000. But if he intended to make the cost of the military buildings a stan- dard for the valuation of those only of the Company's buildings which were specified by him, and such, as appears from his answers to cross-interrogatories 47, 48 (p. 536) is really the case, a com- parison muse be presented of the true relative value of these two sets of buildings, founded as well on the mode of their construction as on their numbers and dimensions ; and from such comparison it will be manifest that his evidence in this respect does not materially con- tradict that of the claimants. As to the construction of the buildings, I refer, first, to his answer to cross-int. 5, p. 528, in which he describes thv construc- tion of the military buildings, and then to his answers to cross-in- terrogatories 40, 41, in which he describes the construction of the Company's storehouses inside the stockade. The former, with the ex- ception of two houses, were one story high, built of logs not squared. The latter, of which he particularly describes one, was a large two-story frame building, filled in, in the Canadian rabbit style, with sawed plank, and straight-edged slabs, and floors of three- inch plank, building not battoned. The frame was very heavy, built of fir timber and lumber, ti\e shingles perhaps of cedar. The other storehouses were built in the same manner, except the n. iin store, which was clap-boarded, and more expense put upon it (p. 535). This description is confirmed and completed by Mr. Mactavish in his 2nd cross-examination, (p. 81 and 82), by Mr. Lowe, (p, 33), and several other of the claimants' witnesses ; by some of whom the superior construction of the dwellings is fully established. 66 The number and dimensions of the military buildings will be found in the cross-examination, (p. 531, 532). Those of the Com- pany are specified in the list A, fyled of record, and also in the depositions of several of the witnesses. Two of the store- houses mentioned by General Ingalls were 100 by 40 feet, and two others were of the same width, by 86 and 90 feet long respectively. The chief factor's house was 70 feet by 40, a substantial and thoroughly comfortable dwelling, as shewn by the concurrent testimony of a great number of witnesses. Of the other dwellings, consisting of what the witness terms the bachelors' row, one was 170 feet by 30, and two were 50 feet long by the respective widths of 30 and 25 feet. These, with the office, are all that are specified by him. Besides these, there were within the stockade at least 15 other buildings of similar constr action, varying from 40 to 80 feet long, and of corresponding width, and a number of others of less dimensions. The storehouses alone were in fact equal in extent to all the military buildings in 1850 ; and, with the other buildings and the stockade (750 feet by 330, and 16 feet high), were together at least four times as extensive ; while their construction, with the exception of the two houses for the commandant and the quarter-masters, was very much better and more costly than that of the military post. The cost of the house of the commandant was, from accidental circumstances, very low, $4,500. General Ingalls states that otherwise i*: would have cost $12,000. The other house cost $7,500 ; and it is to be observed that, in the erection of the buildings, soldiers were employed at the rate of 25 cents per day, for laborers, and 50 cents for mecha- nics (p. 525 and 531). But, further. General Ingalls states that, at the time of which he speaks, 1850, " the H. B. Company's esta- " blishment, as to buildings, was more exteusive probably than at " any other time." All the buildings specified in the list A must therefore have been there, for the accuracy of that list at the time it was made admits of no question ; and I request simply a com- parison of the enumeration made by him, with the whole number of buildings specified in the list, those without as well as those within the Fort, and including the mills, farm-houses, and offices, in or- der to shew how small a portion was comprised in his valuation, and how laconsiderable the military buildings were in comparison with E those of the Company. Hia evidence on this matter, tested by analysis, shews a result not unsatisfactory to the claimants. The only ocher portion of this testimony to which I would advert is that relating to the roads about Vancouver in 1846. He says, (p. 627) : " The roads were very fair, a person could ride or drive " almost anywhere." And again (p. 638) he speaks of the roads as very good. With regard to the other statements made by General Ingalls, many of them are avowedly speculative and conjectural — matters of opinion, not affirmations of fact. I am unwilling to speak other- wise than in terms of respect of the men of high rank and reputa- tion who have become witnesses in this case, but I cannot avoid seeing that General Ingalls' second deposition partakes more of the spirit of the correspondence between Captain Ingalls and the officers of the Company, than it does of the moderate and impartial tone found in his first. Taking his whole testimony together how- ever, I feel satisfied that it increases far more than it impairs the strength of the claimants* case. Grant. (Pt. 2, p. 16.) — General Grant was stationed at Van- couver for nearly a year, from September, 1852. His testimony is not of materia', importance. It is guarded and circumspect, and limited to statements based on his personal observation. He does not pretend to speak with the positiveness to be found in most of the witnesses, whose opportunity and ability for observing were in- finitely less than his. I deem it necessary to notice only one or two points in his evidence. In speaking of the Buildings at Van- couver (p. 20, Int. 10), after premising that he cannot describe them very well, he says: "They were sufficient tc accommodate *' about 200 people, besides the large storehouses for selling goods, " storing provisions. Granaries, Saw and Grist mills," and then gives a pretty accurate account of the manner in which some of them were constructed, and adds : " The buildings looked as if they had " been in use for many years, but were still substantial and would *' have answered for many years with ordinary repairs." He gives no estimate of their value or of the value of the land. In speaking of the overflow of a portion of the latter which he saw only once, he says (p. 21, Int. 4), for ordinary farming purposes, that over- >, i irtit . fiffi i SSl^ i wrffiir'ffwifmm i Mna^ 67 flowed and that not overflowed would have almost equal value in the hands of one owner. He hired a field of some forty acres from the Company which he declares to have been fertile and prc- ductive. I do not find in his deposition anything which on close coniuderation ought to afi'ect, unfavorably, the claimants' case. Steinberger. (Pt. 2, p. 50.) — Mr. Steinberger's evidence is of little importance, except upon one fact in relation to Vancouver, which is, that he owned there one half of ten acres of land, (p. 52), and sold it some time about 1860, for $600, (Int. 6 p. 55). He thinks, but is not certain, that it was on the town site, but it is certain from his description (p. 65), that it was not on that site. This is another fact showing a value of the land at Vancouver higher than the estimate of it by the claimants. Apart from this, Mr. Steinberger's knowledge of the matters on which he is inter- rogated, is inconsiderable, and this he, by his answers, fairly ac- knowledges. Wagner. (Pt. 2, p. 58.) — The third deposition containing state- ments which are for the most part favorable to the claimants is that of Col. Wagner (p. 55 to 66). His knowledge of the buildings was very imperfect, as his answers in relation to them, particularly in cross-examination (p. 63,6-1), shew. His estimate is consequently erroneous. Moreover, his valuation of them, at $6,000 or 88,000, is in August or September, 1861 (p. 60), some 16 or 18 months after they had been abandoned by the Company, and left to decay ; and some of them had been torn down by soldiers (p. 61, 65). But his acquaintance with the land is more full and accurate, and his evidence is given with a frankness and intolligonco which entitle it to respect. I commend the whole of it to careful consideration, but I cite only his answer to the 12th Int. (p. 62). " The lots in Vancouver in 1858," he says, " were sold, an ordinary building " lot in the best locations in the town, as high as eight hundred " dollars." " To my knowledge farming land in the immediate " neighborhood of Fort Vancouver could be bought for forty dollars " per acre, for the choicest improved land. Timber land, just " below, and in rear southwest of the town of Vancouver, unim- " proved, was very cheap. I had a half section offered to me for " one thousand dollars. The lots in Vancouver, I know, after the "*' spring of 1859, decreased at least one third in value. I am not •^ m " able to say with reference to the farming lands, ivhether they " decreased or not." This estimate, of 8800 per lot of which there were six in an acre — 140 for farming land and $3 for timber land, applied to the lands of the Company at Vancouver, gives an aggregate sum very much exceeding the value stated in the Memorial and motion. Howard. (Pt. 2, p. 60.) — Captain Howard's estimate of the buildings in 1851,-2, and-3, is $100,000 ; and this estimate, it is to be observed, was only of the structures within the fort, not in- cluding the valuable buildings, mills, or other improvements outside of it. His evidence is fairly given. (See Int. 4. p. 67, and Cross- Int. 6. p. 69), but the remainder of it is of little importance. Hardie. (Pt. 2, p. 107.) — The evidence of Gen. Hardie must be considered with reference, firstly to the Report of a military board of which he was a member, and secondly to the statements made by him on his personal knowledge. Of this, and other Reports of military boards, made from time to time concerning the buildings at Vancouver, I shall have something to say hereafter. It is evident that General Hardie remembers little or nothing about the buildings which were valued, and this he frankly admits. But their condi- tion and treatment, after they were abandoned, is stated (p. Ill), in nis answer to the Cross Int. 11. His estimate of the value of the land is worth more, as it is given in distinct and precise terms and seemingly with an ac(i[uaiutance with the subject, (p. 109, Cross Int. 0>. It is in the following language : " I consider the United States military reservation to be the most *' valuable land in that region, excepting, of course, the town site " of Vancouver. To the mflitary reservation especial value would " attach from the beauty of its site for handsome residences. I should " think the flat alluvial sand outside this reservation, ought to have " been worth one hundred dollars per acre. Upon the plateau be- " hind it I should have hesitated to have given tea dollars per acre " for any farming purposes," this is $10 for timber land. " For *' purposes of timber, it would have value according to the quality " of timber and its accessibility to the river." Meek. (Pt, 1, p. 62.)— The witness Meek went to Oregon jn 1829, and was engaged in hunting and trapping there for HiMi MwS-'laGu- 69 many years. His deposition is given in the bold and somewhat discursive spirit of a free trapper. Ilis statements have a spirit of honesty in them, but they are vague ; and his estimates have no foundation of knowledge or of close observation. This is manifest from his conjecture of the cost of the large buildings at Vancouver at £100 sterling, which is shewn by other testimony, and by his own cross-examination (p. 87), to be absurd; and which an easy calculation will shew to be less than one quarter of the cost of the timber alone. Most of his life was passed in his vocation in the wilderness, and his occasional visits to the posts were spent in debauch. He was at one of them, he thinks, three days, adding, " it generally took one day to get drunk and two to get sober." I do not believe that his answers can have any weight as evidence, certainly not, except as to facts necessarily falling within his personal observation and knowledge. Of this nature are the statements made by him in relation to the influence of the Company over the Indians, and the beneficial exercise of it (p. 71) ; the treatment of settlers by the Company, (p. 77 and 78) ; and the clear and positive account he gives, be- ginning with Cross-Int. 127, p. 87 and following to 93 of the unlim- ited possession, not only of the land claimed by the Company at Vancouver, but of all that country north of the Columbia river ; of the large number of men employed ; of its great agricultural oper- ations and the excellence of the land; and of its extensive trade- To the Cross-Int. 143 (p. 90), whether he did not belic^'^e that if the Company had been protected in the use of its lauds, it would have made very large profits between 1840 and 1860. He an- swers, " If they had full control of that country, as they had in 1840, they certainly would have made very large profits on their trade." Whatever there is to be found in his deposition having the character of reliable evidence, is favorable to the pretensions of the daamants. Campbell. (Pt. 1, p. 228.) — Mr. Campbell, who was a clerk in the employ of the Company in 1845 and 1846, gives evidence (p. 228), T^hich is useful on two points ; — first, the extent of the trade, and second, the aid extended by the Company to settlers. In 1845, a balance of $40,000 was due from that class of persons, in the Willamette valley alone, and he says (Cross-Int. 7, p. 230), i if the Company had not been there he believes the safety of the settlers would have been very much endangered. The Company gave liberal credits to settlers on their arrival when they were without means to support themselves or their families. His testi- mony relatmg to the credits given by Dr. McLaughlin, is also valuable, as he was in a position to know, and did know, all about that matter. He says (p. 231), he never heard the Doctor say that the Company had charged any of those debts to him ; and he, the witness, does not know that it did so. A'Hbrn. (Pt. 1, p. 169.)— The testimony of Mr. A'Hern is of important value to the claimants. The witness is Clerk and County auditor of Clarke County. He proves, (p. 260), the assess- ment roll for the County, and the assessment of the Hudson's Bay Company, in 1868-9, (p. 261, Int. 12, 13), not including land ; as he states in cross-examination, Int. 1, that real estate had been assessed for only four years, and he was examined in 1866. The uniform assessment of land, he says, is at $1.26 the acre. He then describes the boundaries of Clarke County, and declares by his answer to the cross-int. 9, that from his knowledge of the value of property at Vancouver, as indicated by actual sales, he believes that the true value of land on the town site is geater than the whole ai^ount of the county assessment, and that amount in !'.866, was $773,070. In the next answer, he states, that the land for five miles below that, and one mile back, sold for from $4 to $100 an acre, judging from the deeds recorded in his office. Here is testi- mony from a public officer, a witness for the Respondents, whose knowledge is derived from authentic and certain sources. His truth- fulness or his judgment on the subject can scarcely be questioned, and yet he gives a statement which for six sections of land, (less than 4000 acres), shews a value nearly double the amount claimed for the whole. I refrain from presenting this deposition further in detail ; but the whole of it is worthy a careful consideration. McFbbly. (Pt. 2, p. 118.)— The testimony of Major McFeely relates to Vancouver and Walla Walla. Much of it is of a loose character, resting upon imperfect observation and incorrect recol- lection. He was at Vancouver at diflferent intervals from 1863 to 1860. His statement of the buildings on pp. 119 and 120 is £3 71 grossly defective. This is particularly shewn on p. 120, where he says that when he first arrived there in 1853, there was one old saw mill and, he thinks, a grist mill. Now the fact is beyond ques- tion that at that time there were two saw mills and one flour mill built before 1849, and one new mill finished by Crate in 1852, and a new flour mill. Three of these were running until 1856, when Taylor took violent possession of one of them, and one of them was still running in 1860 when the Company left. I note this statement merely to shew how inaccurate it is ; and yet it represents the character of the testimony of a large class of witnesses for the respondents who rarely state any fact with enough accuracy to make it safe evidence. This arises from want of know- ledge, to which is added a bias, apparent in some shape or other, and in a greater or less degree in almost every deposition produced. Major McFeely follows the beaten track of assertion, that the buildings were old and dilapidated, but admits (p. 123) that he had no occasion to examine them. He says there were one hundred acres of land enclosed near the Stockade when he first went to Vancouver, and he thinks the buildings and this land could not have been sold then for $100,000 (p. 120). Afterwards in cross- examination (p. 123), he says he means that the valuation should be taken as of the time he last visited the place to the fall of 1860, and he applies 175,000 as the value of the buildings, and $25,000 as the value of 100 acres of land. With respect to the other lands claimed at Vancouver it is manifest that he knows nothing about their quality or value. The striking part of this testimony in relation to Vancouver is, that it puts a valuation of $25,000 upon 100 acres of land around the fort, or $250 per acre, the same valuation put upon it by Mr. Mactavish, and a palpable exposure of the unfairness of the un- scrupulous witnesses, Douthet, Applegate, Brooke, Ankeny, and Love to be hereafter noticed who have valued it at from $8 to $20. Upon the whole, making allowan'^e for the defects and proclivities which, from their peculiar position, must be expected in all the evidence brought against i/hem, the claimants find in the testimony of this witness a good deal that strengthens and confirms their case. The remainder of his evidence relates to Walla Walla and Bois^. i- s j a u-j ^■ap p ^ l 72 It is not of much importance, and is given here in order not again to recur to his deposition. He saw Walla Walla twice in 1853 (p. 124) for a few days each tiipe, and Bois^ about as long (p. 127). He places the value of the buildings of the former at $5,000 (p. 121), and of the latter at $2,000 (p. 122), but it is obvious that his estimate of both places is a mere guess. He admits that his know- ledge and recollection are indefinite and uncertain. Vinton. (Pt. 2, p. 129.) — General Vinton's Deposition rests chiefly upon a report made by him in 1849, while Quarter Master at Vancouver, to Gen3ral Smith then commanding there. It gives a detail of the principal buildings inside of the Stockade, and in more general terms of those without, and puts a value upon them of $350,000 at that date. It is true he begins with a much smaller valuation, based upon a rate of $2 per day for mechanics and $1 for laborers and $20 a thousand for lumber ; but he shews no justifi- cation for assuming these prices, and we have from this report and from the evidence in connection with it, the substantial fact that in 1849 the buildings of the Company at the Fort merely, were worth $350,000. This estimate did not include the mills (four in number,) nor the farm buildings on the Lower Plain, on the Mill Plain, and on Sauvi^s Island. These, with the addition of the saw mill built by Crate in 1852, would make up an aggregate value of the buildings and improvements exceeding the estimate put upon them in the memorial. It will not, I apprehend, admit of doubt that any increased value of the property of the claimants, at any time and to whatever cause it may be ascribed, must accrue to their benefit. Sheridan. (Pt. 2, p. 266.) — General Sheridan was examined by Interrogatories under a commission. He gives his impressions, but does not pretend to remember the number or dimensions of the buildings at Vancouver. As to the land, he says, in answer to the 11th cross-interrogatory : " and for the opposite reason which I have " given for putting a very light value upon the structures of the " Company, we might consider the lands occupied by them as in- " creasing in value." v His deposition is of very little moment, and I suppose he was examined because of his high rank and deservedly great reputation. Bblden. (Pt. 1, p. 398.) — George H. Belden, a civil engineer, 73 ir examined to prove the best route for a railroad to be near Portland. But in so far as these various speculations on the subject are intelli- gible to one not familiar with the localities, it seems to me that he proves it on the contrary to be near Vancouver, (p. 391). The evidence is of little moment. I have noticed separately the statements of these witnesses for the United States, as they are distinguished from the others by their generally impartial character. In all the instances in which they speak of facts within their personal knowledge, their testimony, in a greater or less degree, confirms that in support of the claim ; in their conjectures, speculations and second hand information, they are frequently mistaken, but their answers are not those of men speaking under the conscious promptings of hostile feeling. I must now solicit attention to statements by witnesses of a dif- ferent disposition, to whom the claimants are certainly not indebted for any spirit of good faith or readiness to disclose facts favorable to them. On the contrary, whenever such facts have been stated, they have, in most instances, been wrung out by cross-examination, and are the more valuable from the difficulty with which they have been extracted. Brooke. (Pt. 1, p. 127.) — The statements, from witnesses of this description which I shall first notice, are those found in the deposition of Mr. Lloyd Brooke. He was a quarter master's clerk at Vancouver, under General (then Captain) Ingalls, and now resides in the rival town of Portland, where he has a very large interest in town lots (pp. 127, 156). His evidence is given in a manifestly hostile and unfair spirit. He ignores entirely any title in the Hudson's Bay Company, (see Cross-Ints. 127,128 p. 147, also p. 152 Cross-Int. 158, and p. 157) ; and his general assertions are all unfavorable, while his special admissions, forced out by cross-examination, are the reverse. The first part of the deposition, from the beginning up to p. 129, relating to the build- ings at Vancouver, is unimportant, as the witness admits he knows little or nothing of the subject. His answers on cross-examination, however, shew that their value must have been much greater than he, or most of the other witnesses for the United States, are willing to allow. These answers will be found on the pages numbered from 134 to 140. It will there be seen that lumber in 18i9-50 was ..^a. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 II 1.8 U 11.6 m ff>. ^/,. '/ /A Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)873-4503 •SS5 ,\ \\ <> V ^4 4 1^ O \ iV %^ 5 . ' 74 !$80 per thousand, and he admits that ten of the buildings were rented at from $15 to $25 each per month. This is far below the fact, as shewn by document A6, (p. 320), but the admission, which is dragged out with great difficulty, shews how unreliable the whole of his evidence on this point is. His answers also (p. 136) to Cross- Ints. 24 to 26, exhibit remarkable forgetfulness concerning a lease of the saw mill to Captain Ingalls, which he (Ingalls) sold to the witness. The rent under this lease was nearly $1200 a month, as appears by the document itself, which is fyled (A 7, p. 321) ; but strange to say, the witness cannot remember anything about the amount of the rent. The estimate put by him, in his examination in chief, upon the land at Vancouver, is chiefly noticeable for the contradiction it receives from the facts he is compelled to avow on cross-examina- tion. This estimate will be found under the Ints. 19 and 20 (p. 131, 132). It puts the town site (640 acres) at $20, and the military reserve, a part at government price — that is $1.25, — and a part at $10 per acre : the mill plain at $1.25, the 2nd and 3rd plains, and two thirds of the 4th plain, at $5 ; and the lower plain at $20. It must be remarked, that in the answer to Int. 21, an interpolation of the words 'as to ' has been made by one of the clerks in the printed copy, which destroys its meaning — an unauthor- ized and unjustifiable change of the record, other instances of which occurred before it attracted notice. The town site and military reserve, with one or two of the adjoining sections, are, it will be remembered, the lands which have been declared by the witnesses for the claimants to be worth from $500,000 to $1,000,000, and variously estimated by the witnesses of the respondents at from $100 per acre to $800 per lot of six to the acre. In the face of this estimate of the witnesses, are the facts, that General Ingalls paid $100 an acre (printed in this deposition, under the supervision of the clerk $1.00) for ten acres near the town site, but not upon it, and sold it for the same price (p. 132, 144) ; that the witness himself (p. 144) sold one lot (the 6th part of an acre), with a house worth $300 on it, for $900, having rented it while in his possession for 325 a month ; that General Harney paid $10 per acre for 100 acres, mostly timbered land lying on Nye's section, that is, a mile distant from the town site (p. 145, 146) ; and that a sale was made between 1856 and 1860, of 76 were the p^hich irhole :ange land a mile and a half below Vancouver, for $100 per acre (p. 151, Cross-Int. 153). In addition to all this, he acknowledges that the price of hay in 1849 and 1860, and subsequent years, was from $16 to $80 per ton ; the Government purchasing annually 200 tons ; and it is in evidence that much of the land of the Company would pro- duce, at least, two tons per acre (Douthet, p. 262). His state- ment, (p. 131) of the cattle range from Lewes River (the Cath-la- pootl) to Washougal, covers the whole extent on the Columbia River claimed in the memorial, and agrees substantially with the testi- mony of Gen. Ingalls as to the description of the claim given by Mr. Ogden in 1849. These are all very important facts for the claimants, as they confirm the evidence of value adduced by them ; and if applied with the witness' own general estimates to the other tracts of land of different qualities and value, would give a result larger than the amount claimed for them. Much inconsis- tency occurs throughout his evidence. For instance (p. 131), in answer to Int. 19, he says : " The town of Vancouver has always " depended upon the size of the garrison," and (p. 152, Cross-Int. 168,) " that the growth of Vancouver was retarded, in the first " place, by the large military reservation which was first declared " there;" and he exposes the recklessness with which his sweeping and absolute estimates were made in his examination in chief (p. 131, 132), by giving the following answer to the Cross-Int. 179 (p. 166). " My opinion," says he, " of the value of the land is " formed from ordinary observation while passing through the " country and observing the difference in the appearance of the " crops in different localities : / have very little knowledge of ^^ farming^ and donH know that lam a judge of soil." I am not disposed to dwell further upon this deposition. The part the witness took, under the orders of his superiors, in the de- molition of buildings and removal of enclosures belonging to the claimants, notwithstanding the protest and remonstrance of the lat- ter, needs no special comment ; and I am satisfied that a careful perusal of the cross-examination will lead to the conclusion, that, while the witness has failed in his evidence to aid the defence, he has unwillingly added materially to the strength of the claim. Alvobd. (Pt. 2, p. 361.) — General Alvord seems to have been brought for the purpose of estimating the buildings at Vancouver. irr-' 76 He estimates the stockade and the buildings within the pickets, at $25,000 (Int. 6, p. 351) in 1852 ; and in answer to the following interrogatory says, that in 1859 they were so much decayed that they were worth very little. But it is to be observed, that he is under the belief that the Company left in the summer of that year (Cross-Ints. 21, 22, p. 354 and 355), and it was after their abandonment that his second valuation was made. This error in the year shows two things ; first, that the witness is inaccurate in his memory upon an important fact, and second, that his opi- nion of the buildings after the Company left, cannot be received as evidence of their value in 1859. Of the buildings out- side of the Pickets he says nothing. The whole cross-examina- tion shows that he really had no knowledge which would render his estimate reliable, and the answers to the Cross-Ints. from 14 to 17, show the conjectural and unsubstantial character of his valua- tion ; he says something also about certain photographs of Vancouver which have been produced by the defence, but of these I shall speak in another place. Ankeny. (Pt. Ip. 40.) — The next witness of this class whose statements I shall notice is A. P. Ankenay ; his testimony embraces the Posts of Vancouver and Walla Walla, Fort Hall, Boisd, O'Kana- gan, and Colville. I shall first advert to his evidence regarding Van- couver, to which the chief part of it relates. The utter thoughtlessness or dishonesty of his statements is manifested by his answers to Int. 33 (p. 45) , and to Cross-Int. 71 and following (pp. 56, 57 and 58) , relat- ing to the value of the 640 acres of land including the Company's fort and the town site. This land, some of which was bought and sold by General Ingalls at $100 the acre, and is declared by him to be worth from $100 to $1000 an acre ; five acres of which Mr. Steinberger sold for $600 ; some of the lots on which Colonel Wagner declares were sold in 1857, and 1858, for $800 each, and that they have declined one third since ; and of which Mr. A' Hem says that he believes the town site was alone worth the whole assessment of Clarke county, that is $773,007,00; this land Mr. Ankennay declares to be worth $20 per acre. It is true that he is driven from this statement in cross-examination, and compelled to modify it, and in answer to Cross-Int. 93 he declares he is not able to say that the town site was worth $250,000, but he does not deny that 77 it was so. His ambiguous and evasive answers on that subject are significant of the character of all his evidence, relating either to Vancouver or any other of the Posts. His estimate of the rest of the land at from $1.25 'to $10 is too vague to be of any service. If taken at the highest figure, or even one third of that amount, it would give as a result for thel60,000 acres, a much greater amount than has been demanded for it. But his state- ments on this or any other of the subjects on which he testifies, cannot be received as any guide for a safe decision. With respect to the other posts of which he speaks, a few words will suffice. Of Fort Hall, which he first saw in 1S49, and again in 1850, he says (p. 40, 41) : The buildings " seemed to be comfort- able," " the soil pretty good, in places better than the average in that country." " It gave evidence of a good deal of trade there." On cross-examination (p. 46) he acknowledges that " the whole face of the country up and down was good pasture land," and that the Company had a considerable stock when he was there. Of Bois6 he speaks unfavorably and incorrectly, valuing the buildings there at only $2000 (p. 42). Walla Walla he treats in the same manner, admitting, however, that the buildings were worth $10,000 (p. 44). His cross-examina- tion in relation to this Post (p. 53-4-5) shew how little he is to be relied upon. His statements regarding Okanagan and Colville I leave with- out remark. There is evidently a feeling of strong hostility in his mind against the H. B. Company, and especially against its present claim. — • Whether it is strengthened by the fact that his interests are in the rival city of Portland, cannot be known, but certain it is that the whole of his evidence is colored by this feeling ; the existence of which is shewn by the answers to the Cross-Ints. 75, 76, 77, (p. 56) and to Cross-Int. 105 (p. 60). DouTHET. (Pt. 1, p. 244.) — I next come to the deposition of Levi Douthet, which will require a few observations in order to ex- pose the character of the evidence given by him. Douthet is one of the persons who have taken possession of sections of a mile square upon the land of the Company at Vancouver. He, of course, has no favorable feeling towards the claimants, or their present ! i 1 I m ■ I lil'-' • 78 claim, which he is interested in resisting. He is, moreover, a poUtician — having been a member of the Legislature, and is now an elected Probate Judge ;. having risen to these offices from the humble beginnings of a mechanic. His evidence exhibits a series of contradictions and inconsistencies which compel one to believe that he is either a very dull witness or a very dishonest one ; indeed, it is difficult to avoid the conclusion that he has subjected himself to both these imputations. He worked between four and five months in the winter of 1853, under Crate, about the mills. His statements concerning them, and the buildings generally, are contradicted by those of Crate (pp.105-6), Mr. Mactavish, (p. 203) and of all the other witnesses of the claimants who have spoken on the subject. Some idea of his intelligence and honesty may bo formed by his answer to the Cross-Int. (p. 250), as to the value of the water privilege on which the grist mill of the Company was. It is in these words : " It would depend upon whether it was used or not ; if a man would use it, it would be worth something, if he don't use it, it would be worth nothing." His volunteer state- ment, founded on pretended rumor, that the windows and doors of the buildings were taken away by the Company, ai-ft certainly untrue, (Int. 17, p. 24ti and p. 257). I shall notice his esti- mates of the land, chiefly in order to shew the spirit in which they were made, and the inconsistencies in which he has involved himself. The estimates will be found on p. 247 and 248. 1940 acres, in- cluding the town site, the military reserves, and the sections occu- pied by Short and Ryan, he values at from $10 to 15 per acre. In the face of this valuation, on being asked the basis of his estim- ate, (Cross-Int. 33, p. 252), he answers: " My estimate is based " upon sales of land that have heretofore been made, and other land " that I have heard of having been offered for sale." And on being pressed to specify such sales, the only instance he can give is that of land, sold by one Lawrence, as executor of Short, at an average of from $30 to $40 per acre, (p. 253). We may safely drop the $30 and assume the $40, as nearest to the true figure. This, evi- dently, was land of an inferior value and was " unplatted town land. * Again, being driven to specific statements by Cross-Int. 40, and following (p. 253-4-5), he admits that the value of the town lots was $30 per lot, and that there are eight lots in a block. This 79 !!' gives, according to his own account, a result of -1180 per acre. This is less than one quarter of their true value, but it stands in suflSciently strong contrast with his estimate of $10 or $15 an acre. But it is to be further observed upon this estimate, that there are on the town site 108 entire blocks which, with those in the incom- plete blocks, would give a total number of upwards of 970 lots,* and these lots at $30 each would give, for less than 170 acres of the 1920, .a sum exceeding the estimate of the witness for the whole. These 1920 acres at $15 would give $28,800, while 970 lots at $30, would give $29,100. I leave this fact for consideration without further comment upon it. Apart from the town site and military reserve, a large portion of the land included in the 1920 acres now possessed by Ryan and others, is most valuable for agricultural purposes. The witness states (p. 252), that of Ryan's land alone, fifty acres will produce from two to three tons of hay per acre, and that hay for ten years past has been worth $16 the ton at Vancouver. This gives something between $30 and $40, as the annual yield per acre of land which the witness values at $10 or $15. I do not propose tofoll<)w tho statements of Douthot any further in detail, but merely note his answers to Cross-Ints. 48,49 (p. 255), to indicate the mode and character of his estimates. I think the Com- missioners will justify me in the conclusion that his evidence is thoroughly unreliable and dishonest. Buck. (Pt. 1, p. 209).— W. W. Buck is brought up for the purpose of giving evidence of the value of the buildings at Van- couver and at Champoeg. In so far as his means of forming an opinion on these subjects are concerned, he certainly was not hap- pily selected. He never lived at either place. He was never at Vancouver more than a night at a time from 1845 to 1850, and was only once there between 1850 and 1860, that once being in 1852. He was again there in the summer of 1860, after the Com- pany had left. (See pp. 213, 214.) He speaks freely, and a3 de- preciatingly as could be desired by the Respondents, of the build- ings atVancouver, but exposes, and indeed admits, (Int. 7, p. 210), that he was unacquainted with that style of building. He guesses the cost of the stores, 100 feet long by 40 wide, at $1500 in 1846. Map I fyled hy claimants. 80 These are the stores each of which is valued in the Report of the Military Board in 1854 (p. 105), at 12,500, and is proved by the claimants' witnesses to be worth $10,000. But not only is there this contradiction from without, the deposition contains in itself evidence that the estimate of this witness is not to be trusted. He hazards a conjecture (p. 215), that the upright posts in these large stores were eight feet apart, and (p. 216, Cross-Int. 33), he counts sixteen of them in the entire wall of 280 feet, which would be about half the actual number, and then explains his blunder by saying it was only a guess. This was true ; but it is equally true that the whole of his testimony is a guess. On being urged with details upon the question of the cost of the building, he gives them (p. 216), and taking the price of lumber atone-half of what it was in 1849, and adding the items of roofing, shingles, nails and other materials, the amount of these alone would far exceed his estimate of $1500, independently of any allowance for cost of labor. The recklessness and absurdity of such valuations shew that they could only be made by minds filled with prejudice and predetermined at all risks to defeat the just claim of the Company. His evidence (pp. 212, 217) concerning the buildings at Champoeg, which, how- ever, he estimates at $3,000 in 1850, is worth little more than that relating to Vancouver. Love. (Pc. 1, p. 235). — The witness Lewis Love, is not less hostile than the last in his testimony. He is the man mentioned in Crate's evidence (p. Ill) as the successor of Taylor, in the un- lawful possession of the saw mill of the Company, with the section of land on which it stands (p. 236). His interest is, therefore, direct in depreciating the value of the Company's property at Van- couver : and as he is a wrong doer usurping a portion of that pro- perty, he cannot be expected to view the claimants or their claim, otherwise than as an enemy of both. His deposition fully bears out the apprehensions which these influences suggest. It is a mix- ture of hardy assertion and self contradiction, exhibiting a strong desire to injure, which is baffled by the confusedness and incohe- rency of his statements. He came to Oregon in 1849, and resided for some years on the Columbia River opposite Vancouver. His statements relating to the buildings there, I shall leave without remark. They will be found in the examination in chief^on p. 237 81 and in the cross-examination, p. 241, 242, and are of the same vague, loose character as are almost all the other depositions of the United States upon the same subject. As legal evidence, it is worth nothing. The estimates of the value of land it may be Well to examine a little, in order to shew how irreconcilable they are with facts brought out by the cross-examination. He values the land on the Mill Plain at $1.50, and that between the military reserve and the lower end of the lower plain at $5 an acre. I notice these valuations, merely to refer to the answers given by the witness on p. 239. He there says : *' I don't mean to say that the " land on the Mill Plain is only worth -11.50 an acre." * * * " I think the land in the Prairie is worth $5 an acre." And on being asked, how extensive the Mill Plain is, he answers, " about " three sections, or probably not so much, perhaps a little more. I " think that would include all the prairie land oi about all." It is curious, however, to observe that by this estimate and state- ment of quantity, the three sections of prairie at $5 per acre, would amount to more than the estimate of the whole plain at $1.50. This is a kind of test which, when applied to the estimates of the United States witnesses, almost invariably brings out a similar ro- sult, shewing how ill-considered and conjectural all these estimates are. With respect to the lands below the Fort, valued at $5 an acre, the witness (p. 239, Cross-Int. 14), declares that his reason for that estimate is, that it takes in a considerable quantity of swampy land and small lakes of no valu?, and he then admits (Cross-Int. 15) that excluding these, the value of that tract is from $20 to $25 per acre. Now, supposing the " considerable quantity" to be one- fourth or one-third, and it is nothing like that, there still would be an average value of at least $15 an acre, instead of $5. But por- tions of this tract of land have, in fact, been sold at $100 an acre. The military reserve he estimates (p. 237) at $8. His reason for doing so, (cross-examination p. 240), shews the dishonesty of his testimony, and he is compelled to admit a value of $50, the same, he says, as the town site ; but he is also driven from this estimate, and is made to avow a knowledge of sales of town lots, of which there are eight in a block, for from $30 to $120 (p. 241), giving at an average of $70 each, $560 per block for that section 9, -t « 82 of land. I refer generally to the answers of the witness on the pages 240, 241, also to the answers to Cross-Int. 16 and Cross- Int. 27, which are directly contradictory of each other. The an- swer on p. 243, in relation to Ryan's and Nye's sections, exposes sufficiently his under-valuation of the land, lying above the Fort, at $2 the acre ; and I offer no further comments on his evidence. General PLEASANTON.(Pt. 2, p. 35). — This witness was the Officer in charge under General Harney, in 1860. He was one of the immediate agents, under Gen. Harney, in driving the Company from Vancouver. His aggressive conduct has already appeared in the correspondence with Mr. Wark and Mr. Grahame, (Evidence of Hudson's Bay Company, p. 189. Doc. Ev. pp. 361-2-3-4-5.) as well as his impatience at the assertion, by the latter gentleman, of the rights of the Company. It was, of course, to be expected that when produced as a witness. General Pleasanton would sustain the policy in which he was so conspicuous an actor, and this expectation has not been dissappointed. I do not propose to follow him in his deposition. It is given in a spirit of undisguised hostility, and is as unfavorable as he can make it. He values the buildings, at Vancouver, at $10,000, but admits on cross- examination, CP' 140), that he means merely the materials, and all his statements are in a similar spirit. Apart from the evidence for the claimants, McFeely's valuation, at the same time, was 175,000. Gen. Pleasanton, and his chief Gen. Harney, were, probably the two most violently hostile of the Military men with whom the Hudson's Bay Company has had to deal. His answer to Int. 7, (p. 136) is, singularly disingenuous. He is asked, — " Was this post vacated by the Hudson's Bay Company at the time " you were there ? if yea, please to state, if you know, what was " the cause of their vacating this post ?" and he answers, " They " did vacate it nearly a year after the Charter, under which they " held possessory rights, had expired. Their rights to remain there " had expired, and they went away." I refer to the correspond- ence relating to the compulsory abandonment of Vancouver, con- tained in the Documentary Evidence already cited, of all of which the witness must have been cognisant, and then leave to the Com- missioners to determine the value, of testimony in which such a statement appears as an assertion of fact. 88 the oss- an- ses ort, tice. the There is one significant disclosure, in this deposition of a fact, which before appears in his letter to Mr. Wark, and which he en- deavors, in vain, to neutralize or weaken. It is, that Gen. Harney, in the course adopted by him against the Company, was acting under instructions from Washington, (p. 141). I do not deem it necessary to dwell longer on this deposition. Reports of military boards. (Pt. 2, p. 69 to 83, and p. 101). — An attempt has been made to make evidence of certain reports, some military and some civil, which have been put upon the record by the respondents. I notice here the reports by Mili- tary Boards as they relate to Vancouver alone. These Boards, which were three in number, were made up of Army Surgeons and Captains of Artillery, Dragoons, and Infantry, who may have been very intelligent gentlemen, but were not likely to know much about the matter committed to their judgment. Two of the reports were in 1860, by Boards appointed by General Harney. The first, in March of that year (p. 181), comprised only a few buildings on the Military Reserve, the same, it appears, which form the sub- ject of the correspondence with General Harney, found in the letters included between the numbers B. 16, and B. 19, of the Documentary Evidence, — (p. 361 to 366.). The materials only were valued, and that for Military purposes, with a vicAv to their immediate removal. The valuation was higher than could have been expected under the auspices and circumstances in which it was made : it amounted to the munificent sum of $250. The second valuation, (p. 65), which was similar in character, was in June of the same year, after the Company had abandoned Vancouver, and the aggregate of that estimate was $915 for the materials. Upon these two valuations I remark : — 1st, that valua- tions by Military Boards can never be received as evidence of value for other than military purposes ; — 2nd, that the report, not being under oath, is, of itself, no evidence ;— 3rd, that the Officers who made the report, from the evidence given by them under oath, manifestly, remember nothing about what they valued ; for the simple reason, that they knew very little about the matter at the time. Hardie's Dep. p. 110 ; Smith's Dep. Cross-Int. 8, p. 84. One of the members of the Board of June, 1860, Surgeon-Gen, real Barnes, thinks they had a carpenter with them. Another- 84 |k»i McKeever, (p. 80), seems to be pretty sure there was nobody bo- sides the Board. They took some three hours to examine the buildings which they understood were to be removed ; and they cannot, from personal recollection, say how many they examined, or whether the examination included all of the buildings of the Hud^ son's Bay Company at Vancouver, or not. As evidence of the real value of these buildings, as buildings, and not merely as materials for buildings, these reports and statements of the gentlemen by whom they were made, are really worth nothing. It is noticeable, that General Pleasanton, one of the most hostile of all the wit- nesses of the respondents, states, as we have just seen, that the materials of the buildings, were at the same time worth f 10,000. The third report was of an earlier date—having been made in 1854, (p. 101). It is subject to t' e same general objections made to the others. The Board was appointed by Colonel Bonne- ville, after the correspondence with the oflficers of the Company, to be found in the Documentary Evidence (p. 327 to 331), in which they refuse to concur in the proceeding. The report, which gives a valuation of $47,503, but does not, in fact, include all the buildings of the Company, (p. 105), stands by itself. The evi- dence of General Augur, (p. 101), the only member of the Board now living, simply proves it to be, as he believes, a copy of the original ; therefore, there is no affirmation under oath, of the cor- rectness of the valuation contained in it. It is merely the opinion of three unsworn men, and although good as an admission by the party producing it, of the condition and value of the buildings in 1854, so far as it goes, clearly cannot be received as evidence in any degree against the claimants. These reports suggest an obvious remark, which is common to them all. They were themselves an illegality and a tresspass on the claimants' right of property. The assumption of a power to value and then take possession, or rather, as the fact was, to take possession of, and then value the buildings of the Company, was, itself, a gross violation of its rights under the Treaty ; and to com- mit this aggression and then produce the result as a defence against the claim of the party injured, is a proceeding, to say the least of it, remarkable for enterprise and novelty. Wilkes. (Pt. 2, p. 275.). — In reviewing the deposition of Ad- 85 |he id- 3al lis |by miral Wilkes, I shall depart from my usual arrangement by separ- ating certain portions of it which relate to different posts. He speaks of Vancouver, Fort George, Cape Disappointment, Chinook, Cowee- man, Walla Walla, Colville and Umpqua, but by far the greatest and most important part of his testimony has relat' ^". to Vancouver. I therefore treat it hero, reserving the statements I'garding Walla Walla and Colville to bo noticed in connection with those posts. The testimony of Admiral Wilkes all res' apoii the knowledge acquiiLu l)yhim in his exploring expedition, of which an interesting narrative was published in 1845. All that he .iw or knows of any of the posts of the Hudson's Bay Company is confined to the year 1841, and therefore, his testimony, although shewing in some degree the extent of the possessions and improvements at thjit time, cannot be received as fixing their extent or value in 1846. It is fortunate for the claimants that Admiral Wilkes had published his book, for in it we have at least an impartial if not a very complete account of the places visited by him, and his various statements made there, neutralize, in a great degree, those contained in his present deposition, which is in a less fair and friendly spirit. I propose in disposing of this deposition to do little more than contrast the discrepancy, sometimes in matter and sometimes in manner, between the statements made at the two different periods, and to leave to the Commissioners to draw their own inferences as to the strong bias and frequent inaccuracy apparent in the latter. He first speaks of Astoria, (Fort George,) (p. 275-276) proving the possession by the Company there of some twenty or thirty acres of land, of which two were enclosed. His estimate of the value of this land and of the buildings at that time, affords no guide for their value in 1846 and 1850, when the United States authorities took possession of the place. His answers relating to Cape Disappoint- ment, Chinook, Coweeman and Champoeg, may be true for the time to which he refers, but they prove nothing which contradicts the evidence of the claimants or affects their claim. As already men- tioned the most important part of his deposition relates to Van- couver. The extracts from his narrative given in the deposition require no observation in so far as they go, but there are certain passages which have been carefully omitted to which I request attention. On page 327 of his 4th volume he speaks of the post I :ii 86 -■ ■'■■ '^ 2 '■ at Vancouver in the following terms: " The Company's establishment " at Vancouver is upon an extensive scale, and is worthy of the vast "interest of which it is the centre. * * * Everything may be had " within the fort : they have an extensive apothecary's shop, a bal:- " ery, blacksmiths and cooper's shops, trade offices for buying, " others for selling, others, again, for keeping accounts and transact- " ing business ; shops for retail, whereEnglish manufactured articles " may be purchased at as low a price, if not cheaper than in the *' United States, * * ♦ * in short every thing and of every kind " and description, including all sorts of groceries, at an advance of " eighty per cent on the London prime cost." * * * Of the quantity " on hand some idea may be formed from the fact that all the posts " west of the Rocky Mountains get their annual supplies from this " Depot." On page 334 he says, " One afternoon, I rode with Mr. " Douglas to visit the dairy-farm which lies to the west of Vancou- " ver on the CoUepuya (Cath-la-pootl) ; this was one of the most " beautiful rides I had yet taken, through fine prairies, adorned " with large oaks, ash, and pine. The large herds of cattle feeding " and reposing under the trees, gave an air of civilization to the '' scene, that is the only thing wanting in the other parts o^ " the territory. * * * The dairy is removed ev^ry year, " which is found advantageous to the ground, and aflfords the cattle " b'^tter pasturage. The stock on the Vancouver farm is about three " thousand head of cattle, two thousand five hundred sheep, and " about three hundred brood mares." Again on the same and fol- lowing pages : " I saw two or three very fine bulls that had been " imported from England." The California breed of sheep, he says, has been crossed with the Leicester, Bakewell, and other breeds. The description- on the same page, of the site of the old Fort Vancouver, and of the country around, is very striking. Fur- ther down, in the description of the saw mill, the following passage occurs : ". In few buildings, indeed, can such materials be seen as are here used." But this sentence has been cautiously excluded from the deposition, although in the book it immediately follows the words : " There are in it several runs of saws, and it is re " markably well built." On page 336 he says : " From the mill " we crossed over to one of the sheep walks on the high prairie." And again, " On our way back to Vancouver, we met droves of 87 " horses and cattle that they were driving to the upper prairie on " account of the rise of the river, and the consequent flooding o^ " the low grounds." The account of the produce of the land at Vancouver, (p. 333) beginning with " Mr. Douglass was kind " enough to take me into the granary, which contained wheat, flour, "barley, and buckwheat, &c." confirms the statement made by that gentleman in his evidence (p. 52) and shows that the farming earned on there was large and productive. Not only do these ex- tracts from Admiral Wilkes' book, and other passages too long to transcribe, shew the extent and prosperous condition of the Com- pany's operations at this Post, but they also confirm the claimants' evidence as to the area occupied by them. "The farm," he says, (p. 334) " is about nine miles square ; on this they have two " dairies, and milk upwards of one hundred cows. There are also " two dairies on Wapauto Island on the Willamette, where they '* have one hundred and fifty cows." But Admiral Wilkes visited a dairy on the Cath-la-pootl on one side, and the saw mill on the other, and saw a sheep walk on the high prairie (which is the fourth plain) above the mill. He thus proves actual possession of the whole front claimed, and back, at least five miles. The whole ofhig statements of facts in connection with this post, found in his book are favorable, and I request a careful perusal of them as more to be relied upon than his deposition. In the latter he Has taken upon himself to value the buildings at the Fort at f 50,000, (p. 250) and the other buildings, including the two mills, at sums amounting together to $6,600. These valuations are not to be found in his book, and it is needless to say that they are unfair, and very dis- tant from any approximation to the cost or value of the buildings at that time. It seems incredible that after the statement given in the Narrative, of the character and condition of the two mills, one should be valued at $300 and the other at $4,500. The buildings alone of these two mills, without any machinery, could not have been constructed for double these sums. I shall hereafter refer to answers of the witness to the cross interrogatories 15, 16, and 17 (p. 292,) on the subject of this valuation. With re- spect to the buildings at the Fort, they are undervalued in an equal proportion. But the whole of this valuation is worthless, not only because it is palpably unfair, but even if justly made, it could \ 88 E !■■' f I . A Vl: afford no criterion of value for 1846, as in the interval between 1841 and that year, numerous and costly additions had been made ; three new mills (Mactavish, 2nd Exn. p. 81-2 ; Crate, p. 105-6), and all the principal storehouses, (Lowe, p. 24 ; Mactavish. p. 52) with a great many other structures, having been built and the stockade renewed (Mactavish, p. 71) within those periods. The opinion in his deposition (p. 291), that at the time of building this fort, which was long anterior to 1841, all apprehension from attacks of the Indians had passed, is without foundation and abundantly contradicted by events long subsequent to that period. Even so late as 1856, women and children were actually received into the fort for protection. As to his opinion of the value of the land, it is given at random, and is utterly inconsistent with the account contained in his book of the productiveness and favorable situation of the place for agri- cultural and grazing purposes. I refer to vol. 4, p. 327 and 333, already cited ; and in vol. 5, p. 123, he says, " Vancouver exhib- " ited the aspect of an extensive farming establishment, with its " well-stored granaries, stacks of grain, &c., all shewed that the " crops had been plentiful, and gave ample proof of the industry *' and success of agriculture." The customary recital of conversations with the officers of the Company are to be found in the deposition. These imputed con- versations cannot be received as establishing any facts adverse to the claimants. It is not unlikely that the gentlemen named, some- times under depression of feeling arising from the unsettled state of the boundary question, and at other times actuated by a desire to discourage the influx of American traders and settlers, may have spoken despondingly and unfavorably of the business and prospects of the Company; but it is not to be believed that these expressions, whatever they may have been, can, after the lapse of five-and- tAventy years, be detailed with sufficient correctness to form any legal or moral basis for judicial decision ; no memory could be trusted to that extent, and certainly not one shewn to be so inaccurate as that of this witness. The whole substance of the sf;atement3 relating to these conversations and to the decline of the fur trade, is contradicted by the evidence of Sir James Douglas, the only one living of those named in the deposition ; and feen -6), |52) the IThe 'this icks ^ntly so the 89 by the trade returns and accounts of profit and loss which are of record. Ihe speculations of the witness, (vol. 5, p. 137,) concern- ing the trade, simply shew that he was hazarding opinions upon ? subject about which he really knew nothing. I must not leave this book of Admiral Wilkes' without advert- ing to the testimony it contains on several other important points. Thus on p. 136, vol. 5, it states that " every facility has been at " all times extended to new comers and settlers. It is suflScient " that they are of good character, and the use of cattle, horses, " farming utensils, and supplies, is invariably extended to facil- " itate their operations until such time as they are able to provide " for themselves." The rule of the Company is spoken of as absolute over the whole territory, "and although despotic, not one " instance of its abuse could be adduced." On p. 323, vol. 4, it is said: " The Hudson Bay Company's office /-i possess and exert a " most salutary influence, endeavoring to preserve peace at all " hazards. It is now quite safe for a man to pass in any * direction through the part of the country where their posts are." On pages 332 and 333 of the same volume, is the follow- ing passage : — ** The officers of the Company are exerting them- " selves to check vice and encourage morality and religion in a very " marked manner. * * * j gaw no instance in which vice " was tolerated in any degree. I have, indeed, reason to believe " from the discipline and example of the superiors, that the whole " establishment is a pattern of good order and correct deportment." And following this, is the striking and important declaration, that, " Wherever the operations of the Compant/ extend^ they have open- " ed the way to future emigration, provided the means necessary for *' tJie success of emigrants, and rendered its (the country's) peaceful " occupation an easy and cheap tash^ It may be said of the whole tenor of the accounts given in Ad- miral Wilkes' Narrative, of the possessions, operations, policy and importance of the Hudson's Bay Company in Oregon, that they in no small degree, confirm the evidence of the claimants and strength- en their case. It was written in a genial, impartial and truthful spiri"^ which is not equally apparent in the deposition. In this lat- ter, given under a consciousness that his statements were expected to influence the decision upon the present claim, he endeavors to If. 1 ■' )i #.'■ ■li If !■■ ; .1 !i<4 ) ami li 90 retract, interpret and weaken passages which are too conclusive to be so explained away, and in the course of this effort we find he has fallen into inconsistencies, or perhaps I should say, self-con- tradiction in his answers, some instances of which it is my duty to point out. The witness began at once, on cross-examination, to exhibit the temper which characterizes his testimony and makes it tb differ so much from the statements in his book. On being asked, Cross-Int. 3, how mpny sheds there were at Astoria, instead of answering, he demands the definition of a shed, although, as appears by the next Cross-Int. and answer, it was a term made use of by himself in des- cribing Astoria. The dogmatic character of his answers to Cross-Int. 7 (page 290), relating to the site of the light-house and fort at Cape Disappoint- ment, and to Cross-Ints. 15, 16 and 17, relating to the construction and materials oi' the mills, is obvious. He says, " the mills could have been built without the aid of experienced or skilled workmen and nnllwrights," (which is utterly inconsistent with the account given ill his book of the excellence of their construction) and that the man who superintended their building and their machinery, "might, in ii few particulars, have given a more accurate statement of their cost" than he (the witness) could, " but not generally ;" a pretsnsion which is palpably absurd. In answer to Cross-Int. 17, page 292, he denies the fact alleged in his book, that the saw-mill was remarkably well built, and that the materials used in it were of a superior quality, and when his statement there is so urged upon him, in Cross-Int. 18, that he can- not escape it, he says ; "Yes, Sir, I have, I will add now that the buildings, themselves, have very little more to do with the mill than the watch-case has with the works," an answer characteristic of his whole evidence. He also volunteers the extraordinary assertion, that the presence of a blacksmith's shop at that locality was a proof that repairs were frequently required, and this, although he knew and bad stated in his book, p. 336, vol. 4, that this shop was used for purposes of manufacture on a large scale. His answers to Cross-Int. 35, in which he qualifies the admission that he saw various kinds of grain at Vancouver, with the assertion that he does not know that they came from the farms, is in equally strange contrast 91 to Ihe )n- to the so [nt. he lext les- •with his declaration already given from vol.4, p. 3334, and vol. 5, p. 128, (see p. 86-7-8 of this argument); and his positive statement in vol. 4, p. 335, that he saw two or three very fine imported bulls," is exchanged in answer to Cross-Int. 36, for the doubtful expression, *' I think I saw one or two." His answers to the Cross-Ints. 38 and 39, betray the facility with which an imperfect memory, coupled with a strong bias, may lead into errors. The former of these Cross-Ints. is in the following terms : " Do you not consider the situation of Vancouver favorable for agricultural purposes, and have you not so stated?" In his answer he denies that he so considers it or has so stated, and on the question being put more in detail in CrOss Int. 39, he re- peats his denial, aud adds : " On the contrary, I think I have given reasons why it is not so." This was so palpable, and if done con- sciously, so inexcusable a departure from the fact, that the exam, ining Counsel left the matter there and passed to other topics. — Meanwhile, however, the memory of the witness seems to have been aided or refreshed, and he found it necessary to withdraw the an- swers given above. This was an awkward thing to do after having been so special, and he endeavors to cover the eflfect of his statement and misstatement, by saying, " I find, on examination, I made this statement, but it has reference to the mile square around Vancouver." Where he finds in his book this restriction to the mile square, in his account of the land and farms at Vancouver, it "ould puzzle him and anybody else to discover. The fact is, that these several answers and the manifest spirit in which they were given, destroy the value of the whole testimony. The last answer of the witness to which I shall allude, is on p. 301, in which he states that in a conversation had with Sir George Simpson before 1846, he estimated the property of the Hudson's Bay Company in Oregon at half a million of dollars, and that Sir George thought it ought to be a million. This conversation is of no importance in the pre_ sent claim, but I would say in reference to it, that had the million or even half million, been then paid, it would have been more bene- ficial to the claimants than the tardy and expensive recovery of the whole claim at this late day. The foregoing details of the cross-examination of Admiral Wilkes have been exposed, not be- cause they are in themselves of much importance, but in order to shew, as I think they conclusively do, that the statements in his I 92 Narrative are to be generally relied upon, while his testimony, when- ever it goes to contradict or explain away those statements or to introduce facts not contained in them, is probably from failure or inaccuracy of memory coupled with an unfriendly temper, too often unreliable. Peale. (Pt. 2, p. 344.)— This witness accompanied Captain, now Admiral Wilkes in his exploring expedition in 1841. He speaks of Vancouver, Fort Disappointment, and Fort George, as he saw them in that year. His evidence is of no value in the present claim, as it refers to a period five years before the treaty. He puts a valueof $25,000 upon the buildings he saw at Van- couver in 1841, that is, $25,000 less than his chief. They were evidently not of the same construction or in the same number as those included in the list A. made in 1846, and in fact, the most valuable of the buildings had been erected after 1841. It is evident also that the buildings he then saw at Fort George, and estimates at 1600, were not all the buildings which the Company had there in 1846. His estimates, therefore, at both places, are without application to the present claim. But his evidence, even ifapplicable in point of the time to which it is confined, would be useless from want of knowledge, of which he, like most of the wit- nesses of the United States, is shewn by the cross-examination to be entirely destitute. There is the usual statement of conversation with Dr. McLaughlin, to whom, inthis instance. Sir James Douglas is added. These gentlemen gave the witness the impression that the fur trade was decreasing. I have only to repeat of all these al- leged statements and impressions that if they were really made, as a matter of fact they were totally incorrect ; as it is shewn by the extracts and accounts fyled, that no such decrease occurred for nearly ten years later, and if in the course of conversation such im- pressions were conveyed, it Uiidoubtedly was done in conformity with the general policy of the Company to discourage American traders from coming into the country. The witnesses for the United States noticed in the foregoing observations, are all whose testimony is confined exclusively or chiefly to the Post of Vancouver. There are others whose deposi- tions relate to that Post, but they apply also to other Posts, and will, therefore, under the arrangement already explained, be exa- 93 mined together hereafter. Thrf chief of these are Nesmith, Gray» Thornton, Gilpin, Nelson, Applegate, with Rinearson and Carson his colleagues, and Gibbs, and perhaps one or two more of minor impor- tance. They belong, for the most part, to the second class of wit- nesses — those whose statements fire pointedly hostile and unfavor- ble ; but even in their testimony, much will be found to confirm and aid the evidence for the claimants. It is noticeable that notwithstanding the great number of persons, of all professions and from all quarters, induced by the respondents to testify concerning this post, of which for the most part they know little or nothing, not a resident in the town of Vancouver (except A' Hem) and not one of the occupants of the land within four miles of it is to be found among them. Love and Douthet are the only witnesses who are occupants of the land. They are both upwards of four miles distant from the town, and the latter is also three miles at least back from the river. This silence is significant ; for Short, Ryan and Nye, or their representatives, who are in the immediate neighbourhood and hold the 1920 acres of land so often mentioned, and other occupants, at least, a score in number, must have more of the knowledge which would qualify them to disprove the value established by the claimants than any witness produced by the respondents. The actual condition of the town of Van- couver and the opinion and estimate of those resident in it are indicated in the numbers of the Vancouver Register produced, and of which extracts will be found in the documentary evidence of the claimants, (p. 488, 489, F 22, Nos. 13, 14). CHAMPOEG. The next post in the order of the Memorial is Champoeg, an out- post of Vancouver. The amount at which the buildings and laud at that establish- ment are estimated, is J&3,000 sterling for the former, and ^400 for the latter, making in all $16,546.67. This appears, from the evidence, an over-estimate for the buildings and an under^estimate for the land. The evidence of Mr. Lowe (pp. 11, 12) proves the value of the buildings while in possession of the Company, as follows : Granary $5,000, dwelling-house $3,000, and out-buildings a .(• I ■ V r •1 t I'' a 1 1 .1' .i i 1. il 94 $1,000. He considers the land to*have been worth 810,000, and states that it could have been sold at that price until the year 1856. In 1861, after the Hudson Bay Company had been com- pelled to leave the country, an extraordinary flood swept away the buildings, and from that time the property became very much de- preciated. The claimants, nevertheless, submit that they are entitled to recover the value of the property as it was in 1860 ; for if their rights had been respected, they might then have disposed of it for a sum greater than is now claimed. The evidence of Mr. Lowe (pp. 26, 27 and 28) and of Mr. McKinlay (pp. 91 and 96) is referred to. The latter witness says that " Dr. Newell, on whose " land a part of the town site was, would have sold lots in 1861 4' from 150 to $100. His was the lower end of the town. The *' Company's property was in the upper end in much higher ground." These lots, twelve in number, as appears by the certificate of sur- vey fyled by the claimants, (Doc. Ev. F. 2, p. 433,) are declared on p. 96, to have been much more valuable than Dr. Newell's, from their being on higher land, and on account of the landing from steamboats being there. And he adds, the only landing at Cham- poeg during the winter is on the Company's lots. TESTIMONY TOR THE UNITED STATES. Buck. (Pt. 1, p. 209) — Lovejoy. (p. 18) — Apperson. (^p. 218) — Barlow, (p. 223.) The testimony of Buck has been already re- viewed, (p. ). His valuation of the buildings is $3,000. The depositions of the witnesses Lovejoy, Apperson and Barlow, relate to Champoeg only. I do not propose to enter upon any examination of them. Their estimates of the buildings vary from $3,000 to $1,000. The value of the land up to 1801 would seem^ according to their estimates, to have been $50 the acre, except the town lots, which were worth from $50 to $75 each. The buildings were washed away in 1861. The ground of claim for the value of them and of the land as it was in 1860, when the Company was driven to abandon Vancouver, and necessarily Champoeg, which was one of the outposts of that establishment, have been stated above. There is no other evidence of any importance given by these wit- nesses. c 95 COWEEMAN. Tho post called Coweeman, at the mouth of the Cowlitz River, is valued in the memorial at $2,433.33. Sir J. Douglas (p. 53, 59) proves the existence of the buildings, as stated in list A ; as does also Mr. McDonald in more general terms, (p. 154). Sim. mons' evidence (p. 134) is more special, and he values the improve- ments at from $3000 to $4000. Mr. McTavish, however, states (p. 204) that the buildings were disposed of in 1857, but no land was conveyed. Huntington. (Pt. 1, p. 395). I submit the testimony of the only witness for the United States on this post, H. D. Huntington, as to the sale of the buildings at this place in 1857 (p. 395-6). He is borne out in this statement by Dr. Tolmie, and it is undoubt- edly true ; but I find no confirmation of the sale of the land, and certainly no authority existed for any such sale, if any was really made, (Mactavish, p. 204). The matter, however, is not of suffi- cient importance to dwell upon. FORT GEORGE. As several of the witnesses for the United States testify con- cerning the posts of Fort George, Cape Disappointment, and Chinook, or Pillar Rock, together, it will be convenient first to state the evidence for the claimants concerning all these posts, and then to proceed to that for the respondents relating to them. The evidence relating to Fort George, which is valued in the memorial at $4,136.67, is found in the depositions of Sir James Douglas and Mr. Mactavish. The former (pp. 53 and 59) verifies the statement of improvements and the quantity of land as given in list A, and the latter (p. 205) declares the improvements to have been worth more than $4,000 in 1850, when the place was taken by Major Hathaway for military purposes. This post was acquired by the North West Company from the Pacific Fur Company in 1813 — transferred to the Hudson's Bay Company in 1821, and in 1850 taken by the United States as mentioned. The value of the place was certainly not less than the amount claimed for it, and Mr. Macintosh declares (p. 204) " that it must be much more val- uable now than formerly, as there is quite a town at Astoria at present." And the same fact is apparent from the evidence for the respondents, particularly that of Grey and others. i^'- L 'ill M 1 1 ^Uf III r: : I' 96 CAPE DISAPPOINTMENT. The post at Cape Disappointment consisted, according to the allegations of the memorial, of a dwelling-house and stores, of the value of J£ 1 ,000 sterling, and a mile square of land valued at £ 2,000 sterling, making together $14,600. This post was taken possession of by the United States military authorities in 1852. The description of it in the memorial is declared by Sir J. Douglas (p. 54) to be correct. The land claimed includes a mile square. He says (p. 59): "The buildings there were built by contract and carefully " finished. They were commenced in the early part of 1846, " and completed in 1848, and were quite new when given up " by the Company." Mr. Mactavish says (p. 205) : " Their " value could not have been less than $5,000." Of the land, he says (p. 230) : " The land claimed was a mile square, *' 640 acres. There was little land for tillage there. The value of " the land was in its location and suitableness for trade and business "with the Indians, and for public purposes." And again (p. 205) : " At the time of the treaty it was worth, for public purposes, from " 110,000 to 120,000. Since 1846 the Cape has become much more " valuable, as it is now many years since the United States took pos- " session of it by building a lighthouse, and latterly by the erection " of a military establishment, at an expense of not less than "$50,000." Mr. Tilton (p. 141) values the land at $25,000, and considers it worth a great deal more to the Government. Mr. Giddings (p. 143) proves the designation on the maps, of the land claimed, and values it at $40,000 for public purposes. The basis of valuation adopted by both these witnesses is a sound and just one— and the claimants have a right to recover the value which the land bore at the time of being taken by an authority they could not resist. There cannot, I think, be a reasonable question of the right of the Company to recover the whole amount claimed, as that amount is evidently far below the true value of the property. CHINOOK. The only evidence for the claimants relating to Chinook, or Pillar Rock, is that of Sir James Douglas, to be found on pp. 54 and 60 of his deposition. The amount claimed is $1460, He proves ;yo specific value of the building and the 30 acres of land mentioned by 9T him. Upon the whole, it is left to the Commissioners to assess it at such amount as they may deem reasonable. 'J'he witnesses for the respondents supply in some degree the want of a certain valuation. Taylor, as will be seen hereafter, admits in his deposition that the cost of the house there must have exceeded -fflOOO. And other witnesses put different valuations upon it. Testimony for the United States, relatixg to Fort George, Cape Disappointment, and Chinook. Summers. (Pt. 1, p. 192) -Taylor. (Pt. 1, p. 197.)— George Summers and James Taylor testify concerning Fort George (Astoria) and Cape Disappointment. The latter alsu speaks of Chinook, or Pillar Rock. Summers' evidence, which is given in a very uncertain manner, is of no importance in so far as it relates to Cape Disappointment. With respect to Fort George, he thinks the improvements there were not worth more than $500 in 184(), and nothing in 1850 (pp. 193, 194). But his answers on cross-examination, show that his estimate is worthless. The land, he says, was worth $100 an acre in 1846 and 1850, and $1000 an acre at the time of his evidence (1866). And to the question, (p. 197,) whether the occupation by the military of Fort George, and the reservation of the adjoining land, did not depreciate the value of the land at the Fort and at Astoria in 1850, he answers in positive terms that it did. Taylor estimates the buildings at Fort George at from $500 to $700: the land in 1846 and 1850, at from $100 to $150, and afterwards at $1,000 per acrft. Of the buildings at Cape Disap- pointment he knows nothing. It is, as he says, all guess-work (p. 199), as is, indeed, the greater portion of all the evidence of value for the defence. The value of the land he puts at the govern- ment price for agricultural purposes, arid at $5,000 for military and other public purposes ; but he gives the significant fact (p. 202) that for one quarter section on Point Adams, immediately opposite, and less valuable for the same purposes, $2,800 per acre were paid by the government. This rate, for the whole section at Cape Disappointment, would give a result of $11,200. But the land there is, by the most competent judges, Tilton (p. 141), and Giddings (p. 143), estimated at $25,000 and $40,000. Taylor -^'1 ', '' Y. It:; 'V f ii 98 speaks also of the buildings at Chinook ; although ho saw it but once, never stopt there, and don't remember distinctly about it, he estimates again at a guess, $100 (p. 199), and on cross-exam- ination (p. 201) he thinks the cost of it may have been more than f 1,000. This witness, like all the others of the same class, gives, not facts, nor yet opinions founded upon certain knowledge, but conjectures, which are, of course, influenced by dislike of the Company and a desire to follow the current of popular feelings. Welch. (Pt. 1, p. 203). — Welch is a hostile witness. He was a trespasser on the Company's land at Fort Geor;: so early as 1845, and pulled down and sold the buildings o. it to the last witness, Taylor. His unscrupulousness is made ap- parent by the cross-examination (pp. 206, 207). His valuation of the buildings at Fort George, is from |500 to $800 in 1846, and of the land immediately after the reservation was abandoned by the military in 1852, $1,000 an acre. He also esti- mates the building at Chinook at $300. The same remark, already made so frequently, of the absence of any foundation of accurate knowledge for their estimates, must be here repeated. The witness passed Chinook three times, but made little or no stop (p. 205) ; and I would also draw attention to the answers on cross- examination (p. 205), relating to the buildings at Fort George, and shewing by the detail that they are greatly undervalued. Davidson and Harrison. (Pt. 2, p. 305, 312). — George Davidson and Alexander M. Harrison were both on the United States Coast Survey, and visited Cape Disappointment in 1851. They were never there at any other time, and have no infor- mation of a description which can render their estimates of value reliable. Their evidence is not of sufficient consequence to call for any special notice. • Swan. (Pt. 2, p. 372). — The deposition of this witness is only no- ticed to say that it relates to Astoria in 1852, and to Cape Disap- pointment in 1856, long after both these posts had been taken pos- session of by the United States. It is one of the numerous instances of the pertinacity with which this case has been encumbered and delayed by the multiplication of useless depositions. McMuRTRiE (Pt.2, p. 371). — This deposition is of nearly the same 99 character as the last. Mr. McMurtrie was connected with the, Coast Survey in 1850, and visited Astoria and Cape Disappointment, saw a house there of one story liigh, built of logs, or hewn timber which he values at $400. Saw also at Astoria a building said to belong to the Hudson's Bay Company, used as a storehouse, sixty feet long by thirty feet wide, built of squared timber, and several other honses, small frame houses and log-houses, occupied by per- sons said to be in the service of the Company. He admits on cross- examination, that he has no knowlege of the cost of putting up buildings. Gibson. (Pt. 2, p. 374). — Mr. Gibson was on the same survey, and p^w Cape Disappointment at the same time. His evidence is of little consequence, but it affords another instance of the loose and unsubstantial character of the statements of these passing tra- vellers in relation to the condition and value of the property con- cerning which they testify. He says the house at Cape Disappoint- ment, which Mr. McMurtrie describes as a log house one storey high, was a frame house short two stories, or a storey and a half. He values it at $500 (p. 376). Both these witnesses prove the value of the situation for a light- house and fort. Gibson's answer to the 7th cross-int. (p. 377), on this subject, is decided and strong. UMPQUA. The Post at Umpqua was one of considerable importance. Nicholson describes it (p. 147). He says, " There was a " stockade, I should judge, about 100 feet square, with bastions " at two corners. There was a dwelling house occupied by Mr. " Gagnier, other small houses, a store and storehouse, and a stable. " There was a small house back of the stockade— there was quite " an orchard there bearing fruit. The fort was in good condition " and repair, and for the purposes of defence against the Indians " was effective. There were small arms, but no heavy guns in the " bastions. They had both cattle and horses at the establish nent, " and the range for pasture and such purposes was about a section " of six hundred and forty acres of land. They had quite a large " field under fence, but I cannot state the number of acres ; part " of this field was under cultivation ; they had a garden there. It IK t; a K 100 " is the best claim, and best situated of any claiin of like extent on " the Umpqua River." The value of the buildings there is stated at X 3,000, and the land at J£ 2,000. The evidence does not sustain the estimate of the buildings, which, moreover, were mostly destroyed by fire in 1854. Mr Nicholson (pp. 147, 148, and 150) estimates them at $4,000 in 1851, and the land at $8 an acre. Mr. McKinlay (pp. 78, 79) says, the farm was very large, and a fine piece of land level, and hb considered it the finest in the Umpqua that he had seen. There were several houses, a barn and outbuildings, and he thinks half a section was under fence in 1854. Mr. Mac- tavish says (p. 205), that " the location is a very fine one, and " the land claim there is one square mile in extent. The Company *' had also bands of horses and cattle there in 1846, and considera- *' ble farming went on at the place ;" and he adds, " the parties *' who could have testified regarding Umpqua are all dead." In the absence of those men of whose evidence the claimants have been so deprived the best account of Umpqua is given in the deposition of W. W. Chapman, a witness for the respondents, from which it will be found that the claimants are entitled to receive from this post, including both lands and buildings, not less than $10,000, or, if we take Mr. Gibbs' valuation of the buildings, hereafter noted, $11,500. TESTIMONY FOR THE UNITED STATES. Chapman. (Pt. 1, p. 10). — This witness knows the Post of Umpqua well, and is to be relied upon. His evidence relates solely to that post. It is given with great intelligence, and in a spirit of perfect fairness, rarely found in the witnesses for the United States. He was the lessee of the Company from 1853 to 1856. He puts little value upon the buildings, not more than $500 or $300 in all, estimating two of them at $100 each, and the one built by himself during his lease at $300 or $400 (pp. 12, 13). The land he estimates at from $10 to $15 per acre (p. 14), and says, Int. 13 : " The price whioh I have given is not so much from " a recollection of the general price of lands in that country, as the " particular value of this land, which I consider one of the best tracts *' of land in that country." This estimate of $300 for the buildings 101 fl and $15 per acre for one mile square, 640 acres of land, gires a total of $10,200. I refer to this deposition generally as contain- ing important evidence in support of the claim, both with respect to the ownership and the worth of the property. Umpqua was not re-occupied after the termination of Mr. Chapman's lease The reasons are found in the evidence of Dr. Tolmie, pt. 1, p. 400, 401. On the latter page he says, " There were several reasons. '* The Umpqua Indians were placed on a reservation, and were no " longer free to hunt furs as formerly : and since Mr. Chapman, to '• whom the place was leased, gave up the Company's post there, " it has, I am informed, been occupied as a donation claim by an " American citizen." GiBBS. (Pt. 1, p. 21). — In Mr A. C Gibbs we have another pohtical witness. Twice elected member of the Legislature of Oregon, prosecuting attorney, and now Governor (p. 21), it is quite conceivable that he sympathizes in the popular prejudice against the Company. And in his answer to Cross-Int. 43 (p. 31), he admits that in conversation he has spoken against the manner and amount of its present claim . I would not, however, bo under- stoo'^ to impute to this witness any direct or intentional prevarica- tion. It is simply that his opinions, warped by the influences around him all take an unfavorable tone which is not borne out by facts. He describes the post, and says, " As I have under- '* stood the claim and lines, it was six hundred and forty acres, " about one-half first-rate prairie land, level, and the balance ex- " tending on a hill, a part of it timber." His statements concerning the buildings also are circumstantial, (p. 21.) His estimate of them is $1,500 (p. 22), although he admits (p, 26), Cross-Int. 17, that they may have cost $5,000. His valuation of the land at $4.00 or $5.00 the acre, which Chapman puts at $10.00 to $15.00, is more objectionable, and, indeed, is altogether erroneous and unfair. The instances of sale by which he seeks to justify it evidently afford no criterion of value. His own sale at $250 was merely a sale of the improvements, with no title whatever, (see the answer on cross- examination, (pp. 24, 25). It is absurd to give it as indicating the value of land of which the fee-simple could be conveyed by valid title. The other instance given is that of a sale under execution, but of how much land does not appear. Mr. Gibbs fails entirely to l! 1 I I' f* 1* !. ill iS i ii 102 she?7 any ground for his low valuation of the land, and it is incon- tcstible that his opinion on the subject is much less to be relied upon than that of Mr. Chapman. I leave the remainder of this evidence without remark. Deady. (Pt. 1, p. 107). — The witness, Mr. P. Deady, lives in Portland, and is a judge of the United States District Court for Oregon. He speaks to the value of Umpqua and of Vancouver. Of the latter place he, by his own admission, knows nothing (p. 109) ; and the confidence with which, notwithstanding his want of knowledge, he expresses a positive opinion on the value of the land there, indicates that little reliance is to be reposed in his other estimates. His estimate of the Company's land at Umpqua is from $1.00 to $4.00, This is so obviously absurd, when com- pared with the estimates of those having better opportunities of forming a sound opinion, that I forbear to remark upon it. I believe the witness to be one of the most resolutely hostile in his statements that have been produced for the defence ; and I cannot account for the omission to subject him to cross-examination. Thompson. (Pt. 2, p. 217). — Dr. Thompson speaks of Umpqua only. There is little to notice in his testimony. His estimate of a half section of land there is $2,500, and his statements go to con- firm the fact of the Company having had a large number of cattle at that post, and that they were killed by the settlers. The de- position is of little importance. It covers the time from 1852 to 1857, during a large portion of which Caapmau was in possession as lessee of the Hudson's Bay Company. These four are the only witnesses who speak of Umpqua exclu- sively. Of those who speak of it in connection with other posts, I shall notice here only the deposition.of Mr. Gardner. Gardner. (Pt. 2, p. 320.) — The evidence of the witness, Charles F. Gardner, applies not only to Umpqua, but also to the several posts of Coweeman, Colville, and Kootenais. That portion of it which relates to the two latter posts ought to be placed after the notice of the claimants' evidence regarding them, but the testimony is of little importance, indeed of none in so far as it relates to Colville, and it is therefore more convenient to dis- pose of the deposition here. The statements of the witness are not unfavorable to the claimants, but, in one or two particulars, 103 confirmatory of their evidence. His testimony concerning Cowee- man sKews that the Company was in possession of that place in or after 1853 (p. 325-6). Of Umpqua he speaks in 1854, when Chapman was in possession under a lease from the Company. The fort and buildings formerly there had been burned before that time, and the only buildings were a house occupied by Mr. Chap- man, and another house and a barn. Of the land, the witness, a surveyor and civil engineer, who was employed in the survey of the N; W. boundary, says it is " first-rate" (p: 322), " is first- class" (p: 324), by which he means (p. 324), " the best and rich- est land he surveyed." At Kootenais he saw in 1860, while in the boundary survey, only a log house and a shed. He thinks that more than forty acres of land had been cultivated. The land was good (p. 322-3 ) ; he saw no Catholic mission-house there. His description of Colville is too imperfect to be of any value. Of the remaining witnesses whose testimony embraces Umpqua, three, Huntington, Terry, and Do well, will be noticed after pre- senting the claimant's evidence in relation to the three posts of Walla Walla, Fort Hall, and Fort Bois(i. The others are Nelson, Applegate, with his colleagues, and Gibbs. Their depositions will be treated at the close of the claimant's evidence on the second proposition. WALLA WALLA. The Post of Nez-Perc, 7. .,.,,, Tl: w- of suflScient precision or value to justify the bestowal of time upon it. It is of a character common to a large portion of the evidence for the defence, already signalized, and I am willing to leave it with- out special comment. Gibson. (Pt. 2, p. 165). — The testimony of this witness relates to Walla Walla, Forts Hall and Bois^j. His knowledge of them is derived from short and casual visits whilst passing, and although he has the unstinted freedom in giving opinions concern- ing the state of the trade and other matters of which he really could know nothing, his statements are not of suflScient weight or importance to justify me in dwelling upon them. The chief object of his examination seems to be to prove certain statements made by Mr. Ogden in the course of conversation with the witness. The sum of these is, that the Company was holding its property in the expectation that it would not long retain it. In the witness' words (p. 175) : " They expected to get out of the country, they expected a settlement with the Government. He (Mr. Ogden) complained very bitterly of the settlers taking their land, and expressed his opinion that the United States ought to have protected the Company in its rights." And he frequently asked that protection. This is a pretty good representation of the feeling not only of Mr. Ogden but of that of all those interested in t'ae sub- ject. They despaired of protection, and looked forward with ap- prehension to being despoiled of all their property in Oregon. Mr. Ogden's confidential letters, if produced, would show how strong that feeling was. They were not produced, simply because his ex- pressions are, in some instances, too bitter to be made public. I invite attention to the statements of the witness, concerning the landing place at Wallula. They will be found on p. 170 and 178. These show that in 1853, that landing place was the only one used, and on p. 171, he says that in 1853, there were no buildings there, but those of the Hudson's Bay Company, and no body else in the Country at that time. There is a good deal of other evidence in this deposition relating to these three posts, but it is of such a nature that it may safely be left to the test applied to it by cross- examination, and to the contradictions it meets from numerous better informed witnesses. The evidence of Ankeny (p. 42) in relation to this post has already been noticed (sup. p. 76). 124 OKANAGAN. The Post at Okanagan was purchased from the Pacific Fur Com- pany in 1813, and continued to be a place of great importance, while the Hudson Bay Company remained in Oregon (p. 37). It is valued in the memorial at $19,466. AxDERSON (p. 33). — The principal witness is Mr. Alexander Caulfield Anderson, who was at the post at various times subse- quent to 1832, and was in charge of it from 1848 to 1851. He describes it (p. 37) in the following terms : — " The boundaries along the Columbia River line were from the *' mouth of the Okanagan River upwards to a point called the " ' Little Dalles,' thence northward along the line of hills till it " struck the Okanagan River, near a point known as the * Mon- " tde ;' thenco down the Okanagan River to its mouth ; each side " would be at a rough estimate from twenty-five to thirty miles ; " that was the horse range, in which the different enclosures were *' likewise contained. It is an irregular triangle. Certain por- " tions of it were very fine pasture ; other portions very poor : " the good portions contained bunch grass, others sage bush, with " grass interspersed. Along the Okanagan River there were " some low bottoms with occasional patches of good soil, not ex- " ceedmg thirty acres under fence, in little patches. In addition to this, as I before stated, there were small patches of good land along the Okanagan not fenced. * * ♦ Jt ^as the great " entrepot for transport to the northern posts, by which I mean " the districts of Thompson's River and new Caledonia. The fur " trade of the post itself was comparatively insignificant ; its great " value was as being the stopping point, both for the shipping of the " furs in the spring, and reloading the horses employed for transport " for the northern posts. The brigades arrived there generally " about the end of May ; they afterwards united with the Colville " brigade, and the whole then descended the river in boats in " company to Fort Vancouver, arriving there about the 15th June. <' They then re-ascended, and arrived at Okanagan about the end " of July, by which time the horses had had time to recruit, the " number of horses of the two brigades amounted to from 500 to " 600 (six hundred.) The brood mares of the two districts were (( a 125 " likewise brought down to pass the summer there, and probablj " mustered about 200 more ; but as the number of horses was not " sufficient to convey all the goods at one trip, a second trip of a *' portion of the brigade was made later in the season, and from " Thompson's River another trip during the winter. • ♦ * " A certain number of cattle were kept for the use of the post, and " at times a large number of horses were left to recruit there, as " occasion demanded, in connection with the transport to which " I have already alluded." The value of the land alone is estimated at $50,000, and of the fort and surroundings, including all the' land at £30,000 sterling, upwards of 1140,000. In p. 39, the document A, is declared to contain a corect list of the buildings. Mr. Lowe also proves the correctness of the detail of buildings in document A, which was made up in 1847 under his direction. He verified it by actual measurement — and states that the four acres of land mentioned in it was what was then fenced, but by no means embraced all that was under cultivation. They esti- mated the buildings and out-buildings and stockades at $25,000. The testimony for the respondents relating to this post, and also, the others not yet mentioned, will be noticed together after the evidence for the claimants' regarding all these posts has been pre- sented. The only departure from this arrangement would be in placing the observations upon Admiral Wilkes' deposition, concern- ing Colville in immediate connection with that post. « COLVILLE. The Post of Colville was in importance next to Vancouver, and of large value. It took the place of the old post of Spokan, and was established in 1825 (p. 36), and is still in possession of the Company (p. 206). The estimate put upon it in the memorial, $80,800, falls far below that made by the witnesses, and a mo- tion has consequently been, submitted for increasing the amount to $126,532. The witnesses who speak of it are Lowe, Anderson, McDonald, Flett, and Mactavish. Lowe. (p. 1) — Mr. Lowe first visited Colville in April, 1847, and has been there repeatedly since. He says, (p. 14) : ** It is situated '< on the southern bank of the Columbia River, a few miles south of I 126 u " the 49th parallel of latitude. At thia post the Hudson's Bay " Company carried on extensive farming operations, and had a grist "mili Tor the manufacture of flour, with which article they sup- " plied the interior posts in the Districts of New Caledonia and " Thompson's River, as albO Fort Nez-Perc^s and stations in the " Snake country. It was the centre likewise of a large fur trade, " including the Flathead country, Kootanais, and Columbia, Lakes. " Large numbers of horses and cattle were raised here. It was '* also at this place that all the boats required for the navigation of " the Columbia River were built. It was considered the place " next in importance to Fort "Vancouver." He proves the correctness of the list of buildings in document A. which was made bv himself after actual measurements, and adds : " I observe that the quantity of cultivated land is set down in this " list at S40 acres, but that I know is only what was under fence " at the tine, the hay and pasture land not being included. The " flour mill was a strong, substantial structure, and the water power " of great value." He appraises the value of all the buildings be- longing to the establishment as they stood in the spring of 1847, at not less than $100,000. He states that in 1849, several impor- tant additions had been made, especially by the erection of stockades as a further protection against the native tribes who had recently been at war with the Government. The land cleared of timber, and sown with grass seed by the Company, is described by Mr. Lowe (p. 15), as ' xtending " about five miles along the River, and " ranging from one to two miles back, the farming lands at Colville " forming a sort of semi-circle with hills at the back and sides, and " river in front. The 340 acres fenced were on this tract." From its excellent location on the river, and the scarcity of good land in that part of the country, he considers it very valuable, and esti- mates the land adjoining the Fort at $20,000. On cross-examina- tion (p. 30), in answer to an Interrogatory concerning the use made by Indians, traders and others, of the pasture lands of the Company, he makes the following statement : " I understand by traders, men who traded furs from the In- " dians. At the time to which I refer, and as late as 1849, and at " the posts about which I have given evidence, I think there were " no traders except the Hudson's Bay Company. Indians who 127 (< . a came to these posts for the purpose of trade were allowed to pas- ture their horses on the Company's ground while thej remained, " but rarely otherwise. At Fort Vancouver, the only horse In- " dians were the ' Clickatats,' who lived by hunting ; they were " few in number. The other Indians near Vancouver were what '' wo called fish or River Indians, and used canoes instead of " horses." This, without doubt, shews the state of the facts as they existed, and fully sets at rest the pretention that the Company's possession was an imperfect one because in the exercise of their rights, other parties coming to the fort were for the time all' wed to pasture their horses there. This was indeed a necessity, and in no degree im- paired the right of the resident and permanent possessor, which the Company was. Had any tribe of Indians or other class of persons taken possession of these pasture lands at the same time with the Company, or afterwards with their permission, before 1846, it would have furnished an argument against them — but the occa- sional use with their consent shewn by the evidence, surely could not in law or in reason have any such effect. The whole tenor and weight of evidence shewing the control and mastery over the coun- try is conclusive upon the fact, that the only possession animo do- mini of the cattle ranges was in the Company. Anderson, (p. 33). — Mr. A. C. Anderson took charge of Col- ville, in 1848, and remained there until 1851. He verifies the list of buildings in document A. (p. 34). His description of the land occupied by the Company and used for fencing and pasturage is given in the following terms (p. 34): " The limits which I always " considered as being comprehended in the Company's claim started •' from a point immediately above the Kettle Falls, at the foot of " what I call the Mission hill, thence following the river upwards " to a point known as " Dease's Encampment," that is, the water '^ frontage on the Columbia, a distance estimated at about five " miles. The back portion was bounded on the soutlr by what is " known as the " Mill River," throughout the greattjr portion of " it ; it extended up the Mill River some ten mileo, including the " portion of the Company's claim known as the ' "White Mud,' ^' thus forming an irregular square, and also including the mill.* " There were from 300 to 500 acres under cultivation, and & lar- i\ n n ns PU ■ I- ■ !■ 1 i' 1 1 n 1 ^v 1 " ger amount had been cultivated, though the whole was not always " under fence ; certain portions were fallow. This was contiguous to " the Fort. At " White Mud " there were about thirty acres under " fence, and in addition to that, there was a large extent of prairie " laed for cutting hay, say about six hundred acres at a rough guess. " The remainder of this land was used for pasturage ; and the witness "adds (p. 35): " though the apparent quantity of ground is very large " it was not more than adequate for the subsistence of the animals 've " had on hand ; certain portions on the summits of the hills were fit "for spring pasture, other portions for a later period of the year." The whole extent of the claim is stated to be from 16,000 to 20,000 acres. He estimates the value of 1500 acres of it about the Fort and 3000 acres in the vicinity of White Mud, making to- gether 4,500 acies at about $25 in 1846. And the pasture land at a dollar and a quarter an acre, which would give a total estima- tion of the land amounting to upwards of $125,000. The largeness of the establishment and the nature and importance of the business carried on there are stated in answer to Interrogatories 13, 14 and 16 (p. 35, 36). The whole value of Oolville, including the White Mud and the outposts of Kootenais and Flatheads, he estimates at £100,000 sterling. The cost of erecting the Mill alone, the witness believes must ha' e been $20,000, and he thinks it would have cost as much in 1863 (p. 43). In answer to an lutcriogatory on cross- examination as to the value he would place upon the buildings and improvements in 1863 he says : " It would be impossible for me ta " give a definite answer to that question, as I think I have previously '* remarked I consider the value of the property originally claimed " by the Hudson's Bay Company at and around Colville to have be- " come greatly enhanced in value during the past few years. I re- " gard its present value as being very great, owing to its position " relatively to the mines that have been recently developed in " British Columbia, and more particularly upon the Kootenais River " and in the vicinity of the ' Arrow Lakes.' * h< * " I could not give you an estimate of what the cost might be at " the present day of erecting such buildings as the Company have at " Colville, but taking a period of some ten years back, when no saw " mills were in existence, a house, such as is named in the list as the " dwelling house, could not have been built with the facilities then 129 *< existing, and finished as it was. for less than fifteen hundred "pound " McDonald (p. 150). — Mr. McDonald was in charge of Colville from 1852 to 1857. He again asisumed charge of it in 1859, and is now resident there. He had visitadit as early as 1839, and afterwards in 1849, and the two following years. His description of it is given at length, with great particularity, in his answer to the Interrogatories 24 and 25 (pp. 156, 157). From the long period of time that he was in charge of the establishment, and the minuteness and accuracy of the knowledge displayed, his evidence may be received as giving a complete and exhaustive account of this Post. The description of the buildings commences with the years 1839 and 1840 — states the additions made in 1848, and shews that the present condition of the fort is much better than it was in 1848 and 1852. The description of the extent of the land corresponds substantially with that given by Anderson. The land which they farm at Colville, he says, is a " low basin of alluvial deposit about three miles long, " and Crom a mile to a mile and a quarter in width. The best and *' greatest part of that basin was fenced and farmed by[the Company " before and after 1846 ; some of the fences were changed from *' time to time, to allow some of the land to repose. As before " stated, they farmed at the White Mud 30 or 40 acres of the *' richest land in the whole country." He says of it : " Taking the " country together, the pasturage is good, but subject to fires. ^' The * White Mud' plain is subject to overflowing ; when the ^* overflowing subsides, a heavy crop of grass comes out, which is *' cut for hay. The higher part of the ' White Mud' plain is " farmed, and is very rich land ; with refer : ace to the surrounding *' country, the Company's claim is the best farming land within *' hundreds of miles in any direction, especially to the north. It "is Washington Territory's last garden." Wheat and other grains were cultivated there. The wheat was worth formerly $2i per bushel : the price at the time of his exa- mination (1866) was $3.00. Hay in the cock was $9.00 per ton, and at Fort Colville sold for $25.00. As might be inferred from those pricee, the arable land at Colville is declared to be very valuable, worth at least forty dollars an acre; that at "White Mud" the same. The pasture lands taken altogether, save where 130 hay is cut, worth two dollars per acre, and the hay lands worth five dollars per acre (p. 160). The witness says (p. 166) : " I should think there is at Colville from 1200 to 1600 acres, worth forty dollars per acre. If, as it undoubtedly will be, the site of a large town, there is no knowing what land there will be worth. In the vicinity of che * White Mud' farm, within the lines described by me, from four thousand to eight thousand acres, worth forty dollars an acre ; and 1400 acres, more or less, worth five dollars per acre. The pasture lands on the rest of the claim is a peculiar configuration, and I decline estimating the number of acres." This would give a value, taking the lowest figures, of upwards of $200, 000. In addition to this are $20,000, the estimated value of the mill with its site, which is the best in the country (p. 160). Of the buildings he says, (p. 160) : " Taking the country as it is, with men in it and supplies also, you would build it, hiring men at from $2 to $10 per day, for, I should say, from $70,000 to $120)000. I was not in charge when settlers first interfered with White Mud, nor did I closely observe it then in consequence, and therefore can- not exactly value them." On p. 164 the actual cost of the buildings at Colville is (by esti- mate), from $20,000 to $30,000. There are mines near that place which tend to raise the price of produce and the value of agricul- tural land. These are the mines on the Columbia River, from Priests Rapids up to its head ; those on the Pend' Oreille River and Salmon Fork ; and those of the Kootenais Country ; those of Rock Creek and American Creek, and of Shimilkameen and the mines of Northern Idaho; also those of Thompson's River and Carriboo. Flett. (p. 167).-The witness Flett,who resided near Colville from 1840 to 1851, and returned in 1856, taking a claim 25 miles distant, gives evidence which is not entirely consistent with itself, but which, if analysed, still gives a valuation to the claim for this post higher than that contained in the memorial. To the Cross-Interrogatory 10, " What, in your opinion, is the farming land at White Mud and " near Fort ColvUle worth per acre ?" he answers, ♦* I would not " give more than Government price for it, say one dollar and a " quarter per acre." This was a singular answer, as he had already stated that the price of wheat was three dollars a bushel, ! sgs- 131 of hay in the stack ten dollars, and at Colville from $20 to $35 per ton (p. 169). On resumption of the examination-in-chief, he de- clares that the land cultivated about Colville for the growth of wheat yields fifteen bushels to the acre, and that the cost of rais- ing and sending to market would be $15 per acre ; thus leaving a clear profit of $30 per acre. When the glaring absurdity is pre- sented to him, he explains (p. 170) in the following words : " When I said a dollar and a quarter per acre, I meant prairie land, such as the Government allows people to go and take up. I would pay more for it if I could get a deed for the land ; most of all the land that is in the plain round the fort I would give ten dollars an acre for with a good title. I would give no more for White Mad than I would for Colville with a good title." In answer to the question whether there had not been some sales of improvements about the Colville country, he ansvrers : " I know of one that was taken for a debt of two thousand dollars ; when it was surveyed by private survey it was reduced to 160 acres ; it was a pre-emption claim, and embraced a part of the Company's White Mud claim." Even at the rate of tlO per acre, thus stated, which is evidently far below the value f land yielding so large an annual return, the amount very much exceeds that claimed by the memorial. With respect to the buildings, we have no direct evi- dence from this witness,* but he states several facts of great sig- nificance on this subject, and which proves the costliness of build- ings in that locality. He is acquainted, he says, with the price of labour at Colville. Carpenters are paid $10 a day ; farm hands $60 to $70 a month ; hewers and choppers from $5 to $6 a day, and sometimes they could not be had at these prices. The price of lumber was $50 per thousand. It is only necessary to compuio the expense of building at these prices to shew that the amount, $50,000, including the mill at which the buildings at Colville are assessed in the memorial, is far below their actual value, or their value at any time since 1846. Mactavish. (p. 197.) — Mr. Mactavish says of Fort Colville that " the lands about it have " frontage on the Columbia River of several " miles, are very valuable and are daily becoming more so, in con- " sequence of the discoveries of gold in the British possessions, " immediately above Colville, on the Columbia River, and towards t 132 I'i i» " the Kootanais country. The soil is very fertile around Colville, " as well as in other parts of the land claimed in the neighborhood." The entire evidence relating to this important post is compact and complete. It establishes beyond any reasonable question the right of the Company to recover a larger amount than that claimed by the memorial. The buildings have manifestly been undervalued in stating the claim. These latter alone, including the mill and exclusive of the land, are shewn to be of a value which very much exceeds the amount there specified. Even Stevens' report (p. 220, Doc. Ev. of U. S.) which in no other instance estimates the pro- perty of the Hudson's Bay Company at a tithe of its value, gives for the buildings and improvements alone at this post $25,000, about one-half their true value and one-half of the value put by it upon those at Vancouver. While, on the other hand, the proved value of the land alone, exclusive of all the buildings, shews also an equal or greater excess. I cannot conceive it possible that any diflBculty should be felt in according an amount for the property more con- cordant with the valuation put by the witnesses upon it, and as already stated, a motion has been made to amend the memorial by raising the amount claimed for the land to $73,000, making the entire claim for this post $126,533.34. The observations upon the statements made by Admiral Wilkes, in his Narrative relating to this po3t,but not included in his deposition, may be conveniently given here. He declares on p. 443 of vol. IV, the land at Colville to be a " rich black loam mixed with a portion " of gravel capable of producing anything." Again, " the whole " peninsula has the appearance of having been deposited by the " river, and is believed to be the only spot of that character in its " whole course." And again, (p. 444) : " The peculiar character " of the soil renders Colville superior, for the purpose of cultivation, " to any other spot on the upper water of the Columbia." And p. 445, " The cultivation of crops is here the principal object of atten- " tion, for the whole of the northern posts depend upon Colville for " supplies of provisions." On the same page, it is stated, that in 1841 there were 196 head of fine cattle, 30 mares with foal, and 60 horses. I have signalized these passages in order to show the groundlessness and dishonesty of the statements made by many of the witnesses for the United States, and especially by the report of 133 Applegate and his colleagues, which will be found in the foUowin'^ pages, representing this post as of little importance and value. KOOTENAIS AND FLATHEADS. These two establishments were outposts of Colville. The only wit- ness who speaks in particular terms of Kootenais is Flett. Flett. (p. 167). — He was in charge of the post from 1837 to 1839, and last saw it in 1840. It consisted, he says (p. 168,) of three dwelling houses and a store — all of hewn square timber. It was situated on the south side of the Kootenais River near the middle of the Tobacco Plain, and about 300 yards from the river, and was in excellent order. It is about 400 miles from Colville. The whole of the Tobacco Plain, about 4 miles long and two broad, was used by the Company for the pasturage of horses. It was the best wintering ground in the whole country. Some of the land was good, from one-quarter to one-third would yield 15 bushels of wheat per acre.- The buildings when he last saw them in 1840, would be worth at least $6000. The trade of the post was in furs, buffalo skins and deer skins, and was valuable. Flett was succeeded in the post of Kootenais by Edward Borland, who is now dead, and the Company is, in consequence, unable to bring down the evidence relating to this place to the year 1846. I apprehend, however that the evidence of Flett is sufficient to entitle the claimants to the full amount which they claim, $4,866. It is one of the cases includ- ed in the protest in which long delay on the part of the United States Government has put it out of the power of the Company to produce evidence as complete as it might have otherwise done. McArthur. (p. 61.) — With respect to the post at Flatheads, Mc Arthur was first there in March, 1846, and remained in charge about a year (p. 66.) The buildings then were a store house and two dwelling houses. There was also a corral for horses about 200 feet square. These he estimates at $8000. Besides the fur trade carried on, there was a " trade in dried buffalo meat and " pemmican, horse accoutrements, buffalo tallow and fat, par-flSches " and appichemons, dressed skins and raw-hide cords, and also cords " made of buffalo hair — all these last were necessary for the interior " transportation of the Company's goods on horseback. They could ** not be obtained in sufficiently large quantity at any other post on 134 " the west side of the Rocky Mountains." It is manifest that this was an outpost of considerable importance, and the estimate put upon it in the memorial, $2,920, cannot be considered in excess of jts real value. TESTIMONY FOR THE UNITED STATES, RELATING TO FLATHEADS AND KOOTENAIS. Adams. (Pt. 2, p. 113).— Adams, whose deposition has already been noticed in connection with Fort Hall, says of the buildings at Flatheads (p. 114) that they would have cost $1200 ; and (p. 115) that the Indians which trade there have large quantities of furs annually to dispose of. Hudson. (Pt. 2, p. 339.) — Hudson's evidence relates to Kootenais alone. He speaks of two posts of that name, one north and one south of the boundary line. It is with the latter only that we are concerned. He proves the existence there of five buildings that are specified in list " A." One of them, he says, was a Church, but this is an error (p. 140). He also proves that photograph No. 1 correctly represents this building. From what he says, the place would appear to have been abandoned when he was there (1859-60), which, however, was not the fact, and in Int. 9 he speaks of the dwelling of the man in charge." His evidence is generally unfavorable, but is of little importance. Alden. (Pt. 2, p. 550.) — Mr. Alden also, speaks of Kootenais only. He saw some buildings in 1860, whether at the Hudson's Bay Company's post or not seems doubtful. I leave his depo- sition without further notice than merely to call attention to his description of the buildings and lands at the place he calls Kootenais, and request a comparison of it with the evidence of Col. Gardner, who was there the same year. Alden says, ( p. 552,553) there were a Mission House and four other buildings there and that there was no land fit for cultivation. Gardner says ( p. 322,323) there was a log house and a shed, and he saw no Catholic Mission House ; that some lanci not exceeding 40 acres had been cultivated, and that the land was good. Both these statements cannot be cor- rect, and it is probable that Mr. Alden never saw the Hudson's Bay Company's post at Kootenais. / This concludes the evidence for the claimants and a large por- E 135 tion of that for the respondents, relating to all the posts specified in the memorial. The claimants submit, as the result of this proof, that the value of these posts, and the adequate money consideration which they are entitled to receive for them, is shewn by the fol- lowing sums, viz. : For Vancouver not less than $1,000,000 For Champoeg, not less than 6,000 For the post at the mouth of the Cowlitz For Fort George 4,000 For Cape Disappointment, more than 14,000 For Chinook 1,000 For Umpqua 10,000 For Walla Walla, more than 81,273 For Fort Hall, more than 24,333 For Bois^, more than 17,000 For Okanagan, more than 19,000 For Colville, not less than 126,533 For Kootenais and Flatheads 7,780 These amounts, making together $1,310,925 the claimants be- lieve to be fully proved, notwithstanding any counter-statements contained in the depositions for the Respondents already consi- dered, or in those remaining to be noticed. Two of the sums claimed, one for Vancouver and the other for Colville, exceed the amounts specified in the memorial as the value of these Posts ; and by the motion submitted in amendment of that instrument, such addition has been made as will render it more accordant with the evidence. The addition under this motion, which is printed with the memorial, is based upon the evidence not only of the claimants, but also iipor :'ne most respectable portion of that adduced by the Respondents. It might with propriety have been extended to other posts, particularly to Walla-Walla and Fort Hall, but in order to avoid discussion it has been restricted to the two posts named. The right to make this addition in the mode adopted, does not I apprehend admit of any question. It is a proceeding recognized in the Courts of Great Britain and of Canada, and I believe in most of those in the United States. In Lower Canada, it is for- mally provided for by the articles 18 and 491 of the Code of Pro cedure of that Province. 136 1 1 Testimony for the United States not yet noticed. I now proceed to offer comments upon the depositions of the witnesses for the United States not already noticed. They will be taken up in the order in which the evidence for the claimants relating to tho several posts has been given. I would again urge upon the consideration of the Honorable the Commissioners, the observations to be found in the pages 26-7 of this argument relating to the character of all this testimony ; its want of a true basis of knowledge, and of a spirit of fairness and honesty. Of that portion of it which is derived from residents in Washington Territory, it is not too much to say that it is regarde4 by the claimants in the light of a general combination to defeat their just rights. Very little of what these depositions contain is legal evidence. From their great number aud length, and the mass of irrelevant subjects introduced, it has been found impracticable to go into the examination of more than a very few of them in detail ; but that is of little consequence, for the bare reading of most of them, testing the broad statements made in the examination in chief, by the cross- examination, will infallibly expose their worthlessness. Nesmith. (Pt. 2, p. 23.) — The most conspicuous of the class of witnesses, who testify in an unqualified spirit of hostility against the claimants, is Mr. Nesmith, the Senator from Ore- gon. His deposition was taken very early, and made useful in Oregon in the procurement and examination of witnesses there. It discloses that he has followed a great variety of occupations- He began his career in Oregon in 1843, as a carpenter or teamster, and has risen to a very dignified station. His account of himself will be found on p. 31, Int. r>2. He has been a judge, a member of the legislature, captain of a company in the Indian war. United States Marshal for Oregon, brigadier general. Superintendent of Indians, and finally senator of the United States. This is all highly to his credit, and it is not strange that he should have been selected as the model witness for the defence. His presum- ed knowledge and personal influence in the country would, of course, make his deposition a good pattern and guide for the miscellaneous crowd of witnesses who were to follow. That his evidence, whether he really knew anything of importance ^.i. 137 •X country. I* "»"«'' ^^'!Lbv«t7iiig »'<»dwUch he could eo^L^e so'valuaWe a possesion by ^y»g ^^ ^^^ ^, ,^^^ S, in favor of a hated f^'^^"^^, ^,^^^ topic of invective aid l^rticularly of i^ P^^leZiary, it v.as too good an oppor- lon'g his -"''""-'^.f;; *\nh»c; at future elect on, "ae tunity to be lost, of "'e'«'^'"|. ". ^^ ^^ chosen as leader of the emulation, therefore. -^^^^^^Xi^<^-0.e,o.,.>^>^-<>-^' Wtle army of mtnesses of "-eUnfa »t ^ ^^ ^^^ t„o^. a^ iUas not been disappom^d-A^AougP ^ ^^^._^^^ trL «Wch could make >»'='*^^;;, Lased upon what he calls ofSy value, he is "^^ly "* ^^ge of the course of trade (p^5, Int. U) a pretty ^o^^^^^, .,erritory, and «th the ti commerce in 0«g»\^*„„rrprincipal places there. Upon italcharacterandcontonoft^F^^^^^^^^ this stock he asposes of Vanco"" ^^ ^^^^^„g „f ,„ Ist and present, but also of their tutur ^^^ ^^^^^^^ ^^^ 'p:^ce.' TO she, how muchje knew ^^ ^ Ihat his opinion is worth, 1 mvi ^^^ ^j^ the \ Id predictions concerning the tor j)„^„„e„. ""'ttcts tomlocal newspapers to be found m , ^.^ ^^^^^^ "^ ^ mITo of the claimants (p. 488-J). * ; ji„„ ;„ t.on(p.84,*.*^ ^ ^^,«,ereoneday. "^ / . (^m in mS(p.2T); ^dheconsid^st^ja^^^^^ ^^ -PrfasH- ^ts^, ly r^^'ltanl—Ssct^s.hrthe corn- cause for the cmp«ry abando ^^^ ^^„ted with it « c'^riT^^-'^--"^'^^'^ Indiar^ar. at thft 138 Walla Walla he saw but once, in 1843 ; Champoeg in 1844 and since, passing up and down the river. Of course, these places, in his judgment, were of little value, and of no prospective importance. He also speaks of Astoria and Cape Disappointment (p. 29, 30,) saying of the former that, upon a certain contingency, it will become a considerable town ; and of the latter, that it has no value except for a lighthouse and fortification. The cross- examination with respect to all these posts, exposes how little he knew about them, and how anxious he is to depreciate them. His answers relating to the trade of the Company, (p. 30, 31,) require no comment. On one subject he seems disposed to speak with less apparent prejudice of the Hudson's Bay Company ; that is, its policy toward the Indian tribes. He acknowledges this to have been wise and humane, although he does not forget to de- clare conspicuously that the motives of the Company were purely selfish. It was not to civilize the Indian, but to get a greater quantity of furs from him, that they treated him with justice and humanity. I earnestly commend the statement of the witness on this subject to the notice of the Commissioners, Coming, as it does, from an unfriendly source, it is of value on two points : Shew- ing — 1st. The great and quasi sovereign power which the Company possessed over the Indian tribes ; and 2nd. The beneficial manner in which that power was used. These facts, which corroborate the statements of Admiral Wilkes on the same subject, manifestly and necessarily shew, notwithstanding the denials by this and other witnesses for the United States, that the policy of the Company diminished the labor expense and difficulty of colonizing the country, and fitting it for the abode of civilization. It is to be remarked, that no wars occurred until after the treaty of 1846 had given the ter- ritory to the United States ; and if that government had pursued towards the Indians, the wise and humane policy described by Mr. Nesmith, all the violence and loss of life which afterwards followed, would have been avoided. The only remaining answers which suggest any special notice, are those relating to the dangers apprehended from the Indians, and the protection afforded to the American settlers by the Hud- sou's Bay Company. These are to be found on p. 47, 48. It will be observed that the statement made in answer to Cross-Int. 83, 139 that no apprehension was entertained until the Whitman massacre in 1847, is contradicted by the document fyled by claimants as F. 1, and recited, in part, in Cross-Int. 85, 86, 87, to which, the wit- ness admits, by his answers to these interrogatories, that he was a party. The sentiments expressed in that document are widely at variance with the spirit of his present testimony. There is much other desultory matter in this deposition which I leave without fur- ther observation. I have, perhaps, dwelt too long upon it, longer certainly than its value as legal testimony would warrant ; but the witness is in a high and influential position, and his deposition acquired a fictitious importance from having been used at once as an example and inducement for inferior men to follow. Thornton. (Pt. 1, p. 110.) — The deposition of J. Q. Thornton embraces three subjects. 1st, The report of a conversation with Dr. McLaughlin ; 2nd, The value of land in Willamette valley where Champoeg was situated, and 3rd, the value of land at Vancouver. The conversations with Dr. McLaughlin occurred in the years 1847 and 1852 (p. Ill et seq.), after the Dr. had left the ser- vice of the Hudson's Bay Company ; from which, according to the witness, he retired indignantly (p. 112), in consequence of the complaints made of his imprudent advances to settlers, saying, "Gen- tlemen, I will serve you no longer." This conversation, whether it really took place or not, is of no importance as evidence in forming an opinion upon the claim, but it is noticeable for the solemnity of the style in which it is narrated and for an assump- tion of lofty virtue, which characterizes the whole deposition. The Cross-Int. 6, (p. 116) brings to the notice of the witness a written statement made by him in 1850, which is unpleasantly at variance with his account on p. 112 of the cause of the Doctor's retire- ment from the Company's service. His answer to that Cross-Int. beginning with " small rate politicians," after a harangue of a page in length, declares (p. 117) his want of recollection in the following striking terms : " There is not upon my memory a trace of a single fact ; the whole has gone, glimmering through the dream of things that wereJ^ After this poetical mode of saying that he could not or would not remember an inconvenient fact, it is un- necessary to follow him further on this subject. With respect to his estimate of lands, I would only remark, that ' ^- 140 the value put by him upon that at Champoeg, viz : $2 per acre, is contradicted and neutralized by the evidence of Barlow, who resides and has large possessions in the Willamette Valley, and whose valuation is $10 (see p. 2-4, 227). As to the lands at Vancouver, he knows nothing ^bout them. His answer to the Cross-Int. 5 (p. 123), which affords another specimen of his peculiar mode of expressing himself, and the answers following it, admit his ignorance. This deposition covers no less than seventeen pages of high sound- ing phrases and of little else. I leave it, with an apology for having already bestowed so much time upon it. Gilpin. (Pt. 2, p. 330). — Mr. Gilpin was Governor of Colorado. His evidence, like all that derived from political witnesses is strong- ly hostile to the claimants. No opportunity is lost to make inciden- tal statements unfavorable to the Company, and he abounds in alleged conversations in which its officers declared the worthless- ness of their trade and property, and their intention to sell or abandon as soon as they could. The repetition of this sort of thing may be considered a fixed form with all witnesses of this class. — He only refers to the years 1843 and 1844, and it must be repeat- ed that the absurdity of these supposed statements and conversations is shewn, not merely by the concurrent evidence of the claimants, and of much of that of the United States, but also by the accounts produced from the Books of the Company already frequently allu- ded to. There was no decline in the trade and no intention of leav- ing the country at the time to which he alludes, and the conversa- tions which he relates were either themselves imaginary, or they dealt in facts which were so. The witness speaks of six posts — Fort Hall, Bois^ and Walla Walla, Fort Vancouver, Champoeg, and Fort George. I shall notice his testimony on these several posts, which is confined to what he saw in 1843-4, not in the order in which they are placed in his deposition, but in that followed in the Memorial. Of Vancouver. — He was there for a few days in November, 1843, and again in February, and also in April, 1844, (Int. 16, p. 333). He gives in answer to the following interrogatories, a general statement of the buildings there in 1844, and estimates them at $50,000. His statement falls far short of the enumeration contained in list ♦* A," concerning the truth of which, as made by Mr. Lowe 141 IS IP- of in 1846, there can be no doubt, and he omits all mention of the other improvements, such as fencing, roads and farm buildings at the mill, and other farms. His omissions may be partly accounted for by the fact that some of the most valuable buildings had been put up in the interval. He also estimates two saw-mills and a flour mill at $65,000. It is to be observed that, after this and before 1846, another flour mill and another saw-mill had been built, and a second saw mill was begun in 1849 and completed in 1852, (see Crate's deposition, p. 105 and 106). If to the estimate made by this wit- ness, amounting to $115,000, of a small portion of the buildings ;ind improvements at Vancouver, be added, tlio value of those omitted by him, or since built, it would not fall far short of the valuation put upon them in the Memorial. The land at Vancouver, ^.xciading a mile square surrounding the fort, he puts at a cash value in 18434, of $45,000 which is 870 the acre. The remainder ot the land claim he declines to value. His statements concerning the cattle exhibit cither a want of in- formation or a want of truthfulness. He says, Int. 23, p. 335, the number was small. This is contradicted by all the witnesses of the Company, and by many of those for the United States. It is not controverted that large herds of cattle belonging to the Company ranged over the lands in the neighborhood of Vancouver at that period. Sir James Douglas says, that even in 1846, two years later, the quantity of live stock was 1915 head of neat cat- tle, 517 horses, 800 pigs, and 3000 head of sheep (p. 52). Lowe, Crate, Simmons, McKinlay and McTavish, of the claimants' wit- nesses, and Meek and Wilkes, of the Unite i States' witnesses, all testify to the same point. Indeed, it was left for the zeal of this witness, to deny a fact not controverted by any other ; and it is not unfair to say that his mistatemont in a matter so clear and im- portant, casts discredit upon the remainder of his testimony ; most of which relates to Champoeg, Fort George, Walla Walla, Fort Hall, and Bois^. Of Champoeg. — His testimony relating to Champoeg (p. 835) is not of a character to require comment. He did not understand that the Company had any post there. At Fort George he saw "a single building" (p. 336) ; but in cross- examination he estimates "the buildings he saw there at $1,500" (p. 339). , K 142 i His descripti ns of WaUa Walla, Fort Hallan'^: Boisd (p. 331-2) are imperfect, and his valuations grossly u^-.iair. The first post he places at $9,000, including some five or seven acres of land, which he puts at $10 or $12 the acre (pp. 332, 338). The build- ings at that post are proved to have been of great value, at least $50,000, and a large tract of land, some of it under cultivation, to have been in possession of the Company. The buildings at Fort Hall, he says, were log cabins. This is incorrect ; they were all built of adobe. He thinks $2,000 would be a generous and equitable price for the structures there. A refer- ence to the valuation put upon these structures by intelligent and disinterested witnesses, whose evidence has been already adverted to, shews how generous and how equitable this estimate of the wit- ness is. He saw no land enclosed (p. 331), but admits there were 350 head of stock there, and then resorts to his conversations to shew that the trade there was valueless, a matter which he could not posssibly have had any personal means whatever of knowing. Boisd he deals with much in the same manner, valuing the post buildings and all, at another generous and equitable price of $3,000. I will dwell no longer on this deposition. It is one of a series by which imperfect knowledge and strong prejudice are brought forward to break down the clear and intelligent evidence of wit- nesses, perfectly disinterested, and possessing such long and fami- liar acquaintance with the subject of which they speak, that they cannot be mistaken. Gray. (Pt. 1, p. 159). — The deposition of W. H. Gray, requires particular notice. This witness is conspicuous for bitterness of feel- ing against the claimants, and for the unqualified manner in which he endeavors to depreciate their property. He may be regarded as a representative man of the animosity which is all but universal in Oregon and Washington Territories. He has certainly done his best, or his worst, in the testimony he has given, but it will be found after all, to be by no means of a formidable character. Mr. Gray " began life as a cabinetmaker L^ profession," (p. 159) was afterwards secular agent, mechanic, aid ' lacher to the mission of the A. B. C. F. M. When examined, he was an inspector of customs ; and I have no doubt, patiiotif;".!)^ resolved not to allow ■«^ Mr ^1 143 I : HJ 1 11 ■ a u any portion of the revenue of the United States t<^ go into the pockets of a foreign corporation, if by dint of swearing he could possibly prevent it. Ho is also an author, and is collecting mate- rials for a history of the early settlement of the country, in which the Hudson's Bay Company is likely to hold a conspicuous place, (p. 189). It is well, before entering upon an analysis of the state- ments of the Avitness which in every line bear evidence of prejudice and unfairness, to point out the passages where these qualities, if not unequivocally announced, are at least specially manifested. Tb*- first of them will be found on p. 175, where it appears that 'un- friendly feelings existed so long ago as 1839. The witness iiays, there was a lack of courtesy towards him by the officers of the Com- pany at Vancouver. They also refused to employ cither the witness or his wife, probably having their reasons for doing so. He dis- claims this ns the cause of his unfriendly feeling, although he does not disclaim the feeling itself, and (p. 177), states that the post or Walla Walla, when in the harid.< of Mr. M'Bain, the Hudson's Bay Company's officer in charge, " became the imme- diate cause, with other influences in that section, of the destruction of the mission." Again, (p. 179), he says with determined viru- lence, "so far as the protection of the Company (was) aflFor('':d, " my impression is and always ha? been, that the mission of the Board " and of the Methodists would have been for more successful had " there been no Hudson's Bay Company in the country." And yet this was Dr. Whitman's mission, where the massacre took place, and to which the prisoners rescued by the Company from the In- dians, belonged. On p. 182, Cross-Int. 1U9, it appears that the witness signed a petition against the Company in 1843, and did not again make his appearance at Vancouver until 1845 or 1810, and then only for four or five hours. But it is in his quality of author that he is determined to crush the claimants. (See p. 189, 190). He states in his answer to Cross-Int. 165, that for something over a year past he has been collecting materials, Avhich he styles facts, incidents and statements, for a history of the early settlement of the eountry ; and then, upon being asked for the second time (Cross- Int. 166), whether he had not during the last year made many and grievous charges in print against the Company, he answers, " I do not think I have made a single charge but what is strictly true, ;^ ( 144 ■■}■ i from the best knowledge and information I could get." A refer- ence to some of the newspapers containing these charges, will be given below. The expressions '' roh and steal" " open rolhery" applied to the claimants, and the *' curses " de- nounced upon the commissioners if they award " one single farthing" will be found in p. 486, Doc. Ev. of the claimants. The cross-interrogatory 167 with the answer of the examining counsel to the objection of the counsel of the United States, should also be read, and some of the answers following on p. 190. These all show how thoroughly the mind of this witness is biassed and per- verted. His animosity appears to reach the inimioitia capi- talist which, under the Civil Law, would have excluded his testi- mony altogether ; and to this feeling arising from personal causes, must be added that which belongs to the community in which he lives, and the desire to obtain among them the popularity which is sure to follow such evidence as he has given. The deposition must, however, under our system, be taken for what it is worth : and it is, therefore, necessary for me to direct attention to a few of its grossest inconsistencies and violations of truth. His testimony relates to Vancouver, to Forts Disappointment and George, and to Forts Hall and Boise : and also pretends to report certain conver- sations with officers of the Hudson's Bay Company, all of whom, except Sir James Douglas, are now dead. I will first take up his statements relating to Vancouver. He ne- '^? resided near that post, and it does not appear he was ever there for more than a few hours at a time. He first saw it in 1836 (p. 160). He was there again in 1842, and again in 1846 (p. 182) four or five hours. He thinks he was there three times in that year ; and he thinks more than twice between that year and 1850 (p. 181). These seem to have been his only visits to the place ; yet he speaks of the condition and value of the build- ings there as if he hetd carefully examined them, and was master of all the knowledge necessary for forming a judgment. His stRtements on this subject will be found chiefly on pages 164 and 181, covering the period of time from 1836 to 1850. They are, of course, most anfavorable, and contradict not only all the evidence of the claimants, but all the reliable evidence of the United States. I refer generally to the cross-examination on p. 145 181, and shall not follow him into details, with one exception, viz., his estimate of the storehouse, 100 feet hy 40, built in 1846, which he puts at from $500 to $1000. This is one of the store- nouses valued by the Military Board in 1854 at $2,500, and the real cost of which was not less than $10,000. This store, like the other large warehouses, was two stories high, substantially built in the Canadian fashion, with upright posts about eight feet apart, filled in with sawn plank, and was made very strong, to sustain a great weight of heavy merchandize. I refer to the memorandum of the cost of materials given in the observations on Buck's evidence, which shews that Gray's highest valuation does not approach the cost of the timber alone. Compare, then, this valua- tion with his statement, that he was paid for work on a house built by Dr. McLaughlin in 1846, in Oregon city, $1800 (p. 183.) This was for labor alone, including no material whatever, and the house was but little more, or probably not at all more, than one-half the size of the store. I think these facts are sufficient to charac- terize the opinions and estimates of this witness as worthless. A few words will suffice for his statements in relation to the other posts. Of Walla Walla he speaks circumstantially. He was there as often as once a month until September 1842. The buildings there, he thinks, cost ^50 sterling, and that their value would not exceed $1000. His impression is that Mr. McKinlay told him that ^GlOO, or less, would cover the entire cost (p. 161, 162). Now, the buildings at this place consisted, according to McKinlay (p. 73) who built most of thera (and he is confirmed even by this witness, p. 180) of a wall with stone foundation, 113 feet square and 22 inches thick, with all the houses and erections specified in list A, except those at the farm, which were not then built. I would simply invite a comparison of this list and description with the estimate of j£50 by the witness, and the pretended state- ment of MsKinlay that they cost £100. The bringing the two into juxta-position alone suffices to shew the utter absurdity and falsity of the estimate. But the witness has himself declared it. He admits that 3,000 feet of lumber Avere used, and that it was worth 10 cents per foot, or $100 per thousand (p. 179). This alone would amount to $300, exceeding for that one item his £50 sterling, and leaving less than nothing to cover the cost of all 146 1 1 I i i- ''\ I m other materials and labor of the 'trail, and of at least some ten or twelve buildings. The cross-examination (p. 178) shews how little precise information the witness had ; and he is driven at last to extricate himself (p. 180) by allowing what he had not before stated, that the buildings were not finished when he left. This is true ; they were not completed until 1843, and those at the farm were not put up until after McKinlay left ; whose particular and careful evidence in relation to all these buildings spoken of by Gray, is alone sufficient to shew the untruthfulness of his statements. McKinlay is fully borne out by Mr. Lowe's estimate of $50,- 000 in 1847 (p. 12 ), and Mr. Mc Arthur's (p. 63-7-8) at $100,000 in 1848 and 1849,and Simmon's,at the same amount in 1844 (p.l31). Of Fort Hall, and Bois<;, the witness says, that he passed them some three or four times in the course of seventeen years. His testimony with respect to them is of no moment except to shew his eagerness to testify against the claimants on matters of which he is profoundly ignorant. Of Fort George, now called Astoria, he should know more, as he has for many years resided there or in the vicinity. He ad- mits the value of the two acres of land claimed to be 81,000> against the other witnesses, who put it at $2,000. His evidence relating to Cape Disappointment [p. 167] I leave without remark. The mode of putting the Interrogatory 37 draws out an answer which is not only untrue, but is also, certainly, unimportant as evidence of value. ' I have now only to notice Mr. Gray's reports of alleged conversa- tion with several officers of the Company. They will be found, as first stated by him, on pp. 161, 167, 168, and in cross-examination on pp. 188, 189, and 101. It will be observed that these pretended conversations all took place with men who, with the exception of Sir James DouglaSj are now dead. This manufacture of evidence out of vague and aimless talk with men, who are no longer alive to con- tradict the witness or to explain their meaning, cannot be admitted with any safety, even when the good faith of the reporter is beyond suspicion ; but when the witness, as in this case, is manifestly a violent and unscrupulous partisan, it is impossible, with any regard to the ends of truth or justice, to accord to it a moment's considera- tion. All these pretended statements of deceased officers ought I- 147 en m St re is n d therefore, I think, to be dismissed at once. As to those imputed to Sir James Douglas, I would merely notice in the first place, that it is extremely improbable that a man of his known ability and great discretion should disclose to a person of Gray's position, — of whom he could have known little or nothing except that he was an American settler and therefore had hostile interests not only the pol- icy of the Hudson's Bay Company, but also doubts whether it would succeed in getting a renewal of what the witness calls its charter, meaning, I suppose, the second license for exclusive trade (p. 167) ; and the unwillingness in consequence to make any further improve- ments. Be it remembered that these alleged communications which, if really made, would have involved great indiscretion if not actual breach of trust on the part of the officers of the Company who made them, were confidential (p. 188) to a person who was evidently distrusted by them ; for he complains of want of courtesy " by the controlling influence at Vancouver," p. 175, and admits that his services, with those of his wife had been refused there. Now with respect to the doubt about the renewal of the license in 1838, there never was any such doubt at all. It was a matter of negociation under which the Company surrendered its first license which would not have expired until 1842, and took the new one without difficulty. This fact applies generally in contradiction of the pretended conversations with officers now dead, as well as of those with Sir James Douglas. It is of the most importance with respect to the former; for on cross-examination (p. 191, Int. 175) the statements imputed to Sir James dwindle to a simple communica- tion, in the way of business, that it was not the policy of the Com- pany to furnish goods to missionaries or settlers ; and this declara- tion was followed by his making out a bill on London for the goods required. That is all that could he ventured upon by the witness in imputing statements to a living man, and it is harmless enough. This first communication with Sir James Douglas was in 1836, but he has another conversation prepared for him at a later period, concerning the fur trade in and after 1838 and 1839. The general and sweeping statement on this subject, will be found on p. 168. The answer to cross-interrogatory 180 (p. 191) alleges in positive terms that (Mr.) Sir James Douglas informed him that the fur trade was falling oif and decreasing from that time on — that is. 148 from 1838 and 1839. This assertion could be directly contradicted if it were worth while to encumber the record by doing so, bu1> it is already in effect contradicted by the whole tenor of Sir James* testimony. Nobody on reading that testimony can receive any other impression than that up to 1846 at least, trade with the In- dians and the whole business of the Company continued to be in a most prosperous condition. The trade with Indians, he (Sir James) says (p. 52), from 1841 to 1846, yielded an average profit of at least X7000 stg. annually, exclusive of the outlay on buildings and improvements ; and repeating the statement on p. 58, he adds, " and I don't think it varied from that sum in other years," that is, up to the time he left in 1849. But by an inspection of the account of profit and loss On trade from 1836 to 1846, ex- tracted from the books in London, fyled with the deposition of Harris the accountant of the Company (p. 37), the fact is shewn that the returns of the Indian trade in 1838 and 1839 were in fact less than those of the year preceding and greatly less than those of the year following, and that there wag no decrease up to the year 1846, or even later. The same facts appear from the accounts from 1840 to 1850, furnished by the Company to the counsel of the respondents and making part of his documentary evidence, (page 192 and following pages of part 3). From all these pre- iT'ses, it results incontestibly that the alleged falling off in the trade after 1839 is purely imaginary, and either the officers of the Company and Sir James Douglas among them volunteered to make statements to Mr. Gray, wliich they must have known were not true, or he has manufactured a story which is utterly and ma- liciously false : where the balance of probabilities lies, I leave to the commissioners to decide. But there is yet one passage in the deposition of this witness which I must notice as an evidence af his extreme inaccuracy even in indifferent matters. It is another report of a conversation. It occurs on p. 173. The witness states there that Dr. Whitman told him that he saw Mr. Webster as Secretary of State, and Mr. Filmore as President, and had con- versation with them in 1842-3, and he made the same Rcatement in an article published in the Astoria Gazette (p. 172) and swears to the truth of it. He says Dr. Whitman gave hirn almost verbatim the substance of that article (p. 173). Now .'t will not, I suppose, be questioned that Mr. Filmore did not become President until i 149 1850, seven years later, and long after Dr. Whitman's death. This is another instance of Gray's facility in mistaking facts. This facility for mistaking or assuming facts, or for giving them a shape to suit his purposes, may be very convenient for the contributor of partizan articles to a newspaper or to a writer of popular histories, but it is not a valuable talent for a man giving evidence under oath. Three numbers of the Astoria Marine Gazette, containing the history of this pretended interview and the expression of Gray's sentiments toward the Company, are produced by the claimants under the designation F 22, Nos. 7, 8, 9, from which extracts of the more pointed passages have been printed (p. 485-6). I think it is unnecessary to say more of this deposition. Cain. (Pt. 2, p. 222.)— Mr. A. J. Cain's testimony relates to Walla Walla and Colville. He first saw the former place in 1859, and his account of the buildings wubrds, therefore, no guide for any approximate valuation of them anterior to 1855, the year of its abandonment by order of an oflScer of the United States. He says but one building was then standing (p. 223) and it had no roof upon it, but he estimates the ruins at $3000 (p. 224). Repairs were afterwards made by Higgins and others who had taken possession > and this building was leased in 1862 for 8150 per month, (p. 227, 238) and continued at the time of the examination of the witness to be worth $50 per month. Of his evidence concerning the quality of the land at Walla Walla, I shall say but little. With some qualification to be found in various portions of the testimony, as well of the United States as of the claimants, it may be received as tolerably correct so far as it goes. He says (p. 227) " there is good grazing land on the plateau and hill sides within three miles or less of the old Fort" and again (p. 231), "that Walla Walla and Colville valleys embrace the only two large bodies of agricultural or valuable lands east of the Cascade Mountains in Washington Territory." But his evidence concerning Wallula and the section of land around the old Fort, is important. He says it has become valuable as a landing ; and that Wallula is the most important landing on the Columbia River in that portion of the Country (226, 227) ; steamboats making daily trips there. And he answers to Cross-Int. 30 (p. 242,) that there are twenty or thirty persons Carrying on trade there, and that abou. 150 80 acres around the old fort is occupied by the buildings of these traders (p. 237). This is the half mile square which William An- derson, a witness for the claimants, values at $40,000 or $50,0.0. Another noticeable point in this testimony is that relating to the rate of frieght from Portland to Walla Walla and Boisd. " This" he says, " prior to the gold excitement, was from $120 to $130 to " Walla Walla, and from that place to Bois^ 20 cents per lb." This is important in shewing how costly all articles used in the construction of the buildings at these two places, not obtained on the spot, must have been. That portion of the deposition which relates to Colville is of little value. He was there but twice, a day each time, in 1859 (p. 227.) He describes the buildings (p. 224) as of the most ordinary descrip- tion, built of logs, put up in a rough manner. He does not re- member the dimensions ; was struck with the dilapidated air the place wore, yet he takes upon himself to pronounce upon their value as being $7000. That the buildings were not log houses, is shewn even by the report of Applegate and his colleagues. Indeed, in cross-examination (pp. 228, 229, 230) the witness virtually con- tradicts his account of them given in his examination in chief. The truth is, he speaks too confidently from vague impressions and imperfect recollection, and knows very little about the character or condition of the buildings. I leave his cross-examination on this subject to its eflFect upon a careful perusal, without dwelling further upon it. This witness in cross-examination proves in a somewhat evasive and indirect manner, but so as to leave no doubt in any unpre- judiced mind, that the free use of the portages on the Columbia River is obstructed and indeed destroyed. It being shewn as a matter of fact that all the lands upon which the landings and por- tages were, have been granted by the United States to Rail Road Companies or to private parties, in whose possession they now are. For the evidence upon this point, I refer to the pages from 246 to 250. I cannot leave his deposition without noticing the striking instance it affords of the discursive manner in which the witnesses for the defence have been examined. Here are no less than six examinations and re-examinations in chief. Whenever the cross- examination has shewn the unsoundness and incorrectness of the <. I r • • ( 151 < m* statements of the witness upon any or all of the facts on which his first evidence has turned, he is immediately taken in hand again by direct examination. To this course, which is contrary to the recog- nized rules, and subversive not only of the object of cross-examina- tion, but of all regularity pf proceeding, the claimants have not tinfrequently been obliged to submit in order to escape the greater evil of increased delay in resisting it. SucKLEY. (Pt. 2, p. 540).— Dr. Suckley is brought up to load the record with conjectural estimates of the comparative value of the buildings at several of the Hudson's Bay Company's posts. He speaks of those at Colville, Bois^, Walla Walla and Okanagan. He professes in a bold, oflf-hand manner, from having seen these places on an occasional visit to each, while on the Northern Pacific Rail- road exploration, to settle their respective values in relation to each other, and to tell the number of days and of men which would be required in their erection. The d( osition is remarkable for the flippant and confident tone in which he pronounces his opinions upon matters upon which he really had no substantial knowledge, and is of the same type as a large proportion of those already examined. I merely refer to the cross-examination to shew this, aud leave it without further remark. MowRY. (Pt. 2, p. 384).— This witness, who is a miner, speaks of Colville, Okanagan and Walla Walia. He visited them on a survey, under Capt. McClellan, for the Pacific Railroad, in 1853. He was about 24 hours at Colville, where he diner*, with Mr. Mc- Donald, and seems to have been dissatistiedwith his dinner (p. 384). He first says of the buildings, that they were serviceable and in tolerable repair, and then, that they were decaying and there seemed to be no desire to keep them up, and declares they had depreciated 40 per cent, since they were built. He admits on cross-examina- tion (p. 387) that he made no special examination, and that his opinion was not formed when he was there, but had been made up since he knew he was to be a witness. It appears, however, from his answer to the 6th and following Cross-Interrogatories, that his recollection is very imperfect, and indeed it is plain that his observation of the place when there, was not of a nature to enable him to make any true estimate of its value or condition. Of Okanagan he knows even less. He was in the fort twice, a I m 152 few minutes each time. His assertions in relation to this place, and to Walla Walla, are shewn by the cross-examination tc be sa utterly destitute of any basis of knowledge, that they do not deserve a moment's attention. He was expected to say something unfavor- able to the rights of the Company, and he said all he could. Gardner. (Pt. 2, p. 191). — Mr. G. C. Gardner seems to have been a favorite witness, having been brought up and examined three times at intervals of six and two months. Ho was assistant astronomer and surveyor of the N. W. Boundary Survey. He saw in the course of that survey the posts of Kootenais, Colville and Okanagan, but with the exception of the estimates applying to Colville, says nothing of importance. He speaks of photographs of Kootenais and Colville, but these photographs can give no accurate idea of the extent or character of buildings. That of the buildings at Colville represents merely the rear of the subordinate officer's quarters and the gable end of a store house (p. 198). He admits on cross-examination (pp. 196, 197, 198) the imperfectness of his observation and recollection. In his third examination which took place some eight months after the first, and two months after the second, the witness is made to give an estimate of the cost of buildings erected by the American N. W. Boundary Commission at Colville depot. This amount he gives from different accounts produced, at $3,880.36, (p. 203,) and says that the buildings of the Company were not more than twice as extensive nor more than double the value of these, but it is evident from his answer to Int. 18, p. 194, and to Cross-Int. 7 and following Cross-Ints. on pp. 197-198, that he has a very im- perfect recollection of the buildings at Colville, and if his comparison of their number and extent be tested by reference even to the- hostile report of Applegate and his colleagues (p. 275), it will be seen that it is of no value. Without dwelling upon this subject, I request attention first to the specification of the buildings of the American Commission in this deposition (p. 199), and then to the specification of the buildings of the Hudson's Bay Company in McDonald's deposition, (claimants' Ev. p. 156-157). The gross injustice of the comparison made by the witness will then be made apparent. I have but one other point to note in this deposition. It is the • m^ iiiiimi 153 his place, 1 to be so >t deserve unfavor- d. 3 to have 'xamined assistant He saw illo and jing to Taphs of iccurate uildings officer's admits s of his months s made lerican tmount 203,) 3 than but it Int. 7 y im- irison ) the- ill be ^t, I 'the the Y in :ross lade the. Mr ls says they were more numci is than those of the American Commission, and worth three times as much. The fact is they cost 120,000, and in extent and number wore not more than half equal to the buildings of the Company at Colville, and bore no comparison with them in solidity and carefulness of construction. ToLMiE. (Pt. 1, p. 97). — Abandonment of Posts. — Dr. Tolmie has been examined on the part of the defence for the purpose of proving the abandonment, by the Company, of several of its posts ; particularly of "Walla Walla, Forts Hall and Boisd, Okanagan and Umpqua. His evidence is very full and important on this ubject, and fully sustains the position taken upon it in this argument. It is so complete that it is unnecessary to make any comment upon it. I respectfully request that it may be read as a supple- ment to the explanation to be hereafter given on this subject, and as conclusive evidence both of the causes of abandonment and of the impracticability and uselessness of any attempt on the part of the Company to re-occupy the posts which it had been compelled so to abandon. Hewitt. (Pt. 1, pp. 381-385). — There are two witnesses of this name. Their evidence, which relates to Fort Hall, is worth nothing ; but I have a word to say of each of them, upon facts which give loud testimony to the state of feeling in Washington Territory, and the utter impossibility of obtaining for the Company any measure of right or fairness there. The former of these wit- nesses, the Hon. C. C. Hewitt, is Chief Justice of Washington Ter- ritory. He was examined also in the P. S. A. Company's claim, and his charge in a case by a lessee of that Company against a trespasser on its lands, is produced (Doc. Ev. of P. S. A. Co., G 1, p. 176) and is made evidence in this cause also. I refer to it as the most ingenious specimen of judicial mystification of a jury which it has been my lot to encounter. It is conclusive upon tlie ques- tion of the uselessness of any resort by the Companies to the courts of the country. R. H. Hewitt is, or was, the editor and proprietor of the Pacific Tribune, and clerk of the Court. It appears from his examination 154 in the P. S. A. Company's case, (p. 93 and seq.) that one of the Counsel of the Hudson's Bay Company, who resides in Washington Territory, knowing the state of feeling there, and the extreme diffi- culty of getting anybody bold enough and honest enough to testify in favor of the claimants, sought to disarm some of this hostility by inducing Hewitt to keep silence in his paper on the subject of the claim, — not to advocate it — but merely to abstain from abuse, and from adding to the violence of the popular excitement. He agreed to do so for one hundred dollars, which were paid, but, after pock- eting this payment, or bribe for doing what one would suppose any just or honest man would have felt bound to do, he finds the pressure, either of his own animosity or that of those about him, too strong to resist, and returning the money betakes himself with increased vigor and venom, to the business of misrepresentation, invective, and de- nunciation. Specimens of his work have been put on record, con- tained in several numbers of the Pacific Tribune, The inflamma- tory articles in that newspaper, were continued in every publication during the whole time that the testimony of the claimants was being taken on the North West Coast ; but a selection of a few only has been made, which afford example of all the rest, and shew, without a possibility of mistake, what soi-t of justice and fair play the Hud- son's Bay Company had to expect from the population of Washing- ton Territory. Noble, (p. 395). — I notice this deposition merely to say, that it can have no eifcct as evidence. It purports to give an expression by Mr. Ogden in 1850, that the fur trade was ruined by the depre- ciation of beaver. Mr. Ogden is no longer alive to contradict or to explain the words which this witness and others have imputed to him. Whether in the course of general conversation he said something to the effect stated by the Avitness, who is not very sure about it, Cross-Int 9, p. 397), is of little importance : and of still less im- portance is the alleged statement of Mr. Graham, that he had taken a claim at Vancouver. Whatever he may have stated, the fact is simply, that he never did so or intended to do so, for any other purpose than to protect the interests of the Company. This witness in his examination in chief (Int. 11), says that Mr. Gra- ham stated also that he had taken the oath of allegiance to the United States. On cross-examination (Cross-Int. 15), he considers 165 I this allegation too hazardous to persist in, and modifies it by saying he had declared his intention to become an American citizen. The one allegation is as unfounded as the other, for at this date, 17 years after, Mr. Graham is still a British subject. Moses. ( p. 327 ). — The deposition of Simon P. Moses, relates to the payment of certain duties of customs by the Hudson's Bay Company, and to the remonstrances of Dr. Tolraio and Mr. Bal- lendcn. I cannot see that it has any bearing of importance in this case. Gardner. (Pt. 2, p. 310). — Mr. Charles Gardner, a photo- grapher of Washington, proves certain photographs produced by the respondent to be true copies of the original j)hotographs. I notice his testimony merely to exhaust the list of the witnesses for the United States. With respect to these photographs or the others produced by the respondents, I do not think they require any notice further than the obvious remark that they are a kind of thing which cannot be relied upon as giving any complete or just represen- tation of the places to which they relate, and still less as a means for judging of the construction or value of those places — I dare say, pictures giving a very pretty and imposing view of them all, might have been obtained by the claimants, had they supposed that the minds of the Commissioners were likely to be influenced in that way. Nelson. (Pt. 2, p. 86.) — The deposition of Mr. Nelson, formerly chief justice in Oregon, contains a kind of report of notes of conver- sation alleged by him to have been held with Dr. MacLaughlin in consequence of certain instructions received from the Doiiartment of State of the United States (p. 87). Apart from these notes and the manner in which they were taken, his evidence is of little import with the exception of two or three points in which it is favorable to the claimants. He was instructed in the fall of 1852, by a letter received from Mr. Webster, then Secretary of State, to make inquiry into the character and value of the claims of the Company. Instead of applying to the chief factor or any officer of the Com- pany, he goes to Dr. MacLaughlin who had left its service between six and seven years before, and was then residing in Oregon city. Dr. MacLaughlin was an old man, who had left the service of the Company excited and annoyed by its censure for his imprudent con- duct in giving indiscriminate'credit to settlers, and who had evidently 156 '5 the garrulity f a;*e (Crosi-Interrogatory 14, p. 93, Cross-Interro- gatory 25, p. 95). He had a claim for land in Oregon city, and talked of applying to the territorial Legislature and to Congress to confirm his claim. "He was," says the witness, "much disturbed about it and made many and grievous complaints," (p. 95). Now Mr. Nel- son was Chief Justice ; his principal, Mr. Webster, was Secretary of State > and it is perfectly easy to understand how an excitable and talkative old man, with his mind eagerly bent upon making in- terest for Iiis cause with powerful advocates, should without inten- tional misrepresentation give such an account of the rights of the Company as would be acceptable to parties whom, from their rela- tion to it, he knew to be desirous of cheapening those rights. The answers of the Dr under the manipulation of an acute law- yer, were reduced into the notes now produced. It is not pretend- ed that these notes contain the language of Dr. MacLaughlin (see Ci'oss-Interrogatory 13, p. 93, and again Cross-Interrogatory 17, ]). 94,) nor do they embody all the conversations on the subjects to which they relate. So much was noted, and in such form as suited the purpose of the quest ioner, and no more. Of course, these notes cannot, by any latitude of construction, be accepted as evidence ; but if they could, I submit that no rcUance could be placed upon them. They were taken v"der circumstances, and presented in a form in which they can be of no Wvi ^ht ; and I have not presen- ted these observations because I find anything formidable in them. If examined, they will be found to contain manifest inaccuracies, which show that either the informant's memory was at fault (which it probably was) , or that the notes themselves are incorrect. He says (p. 08) " there are no trading posts north of the 49th degree of latitude." This is an inaccuracy. The Hudson's Bay Compai!y had numerous posts north of that parallel, which had been establisb.ed long before those south of it. The precise meaning of the words quoted is made uncertain by what follows them. Whether it contradicts those words, or leaves the phrase without meaning, it is diSicult to determine ; but it is certain that statesments so loosely taken down and so unintelligible, cannot with any safety be received as evidence. There are several other palpable mistakes not in themselves important, but which sho 7 the general inaccu- racy of the notes They state that Kbotenais is on the Kc .oaig 167 Lake ; there is no such lake. The cattle range is given much as it is stated in the memorial, and by the claimants' witnes- ses; but the distance between the Cath-la-pootl and the River Duth^ or Vivet, is stated to be 20 miles, whereas it is 35, as shown by the map (p. 99). Again, in speaking of the buildings at Van- couver, the notes say that there are fou»- °tores of 100 feet, and a granary 60x40, mess-house and office. These are all the buildings specified. Then follow the words "$100,000 expended." Now, the fact is, that there were only three stores of 100 feet, and that the granary was not 60, but 50 feet by 40. If error occurs in all the instances in which anything specific is stated, is it not fair to con- clude that it may also occur in other statements ? Is it not, for instance, more likely that Dr. MacLaughlin should have used the denomination of pounds sterHng, in which the books of the Company were kept and its business was done, and to which he had been accustomed all his life, than that of dollars ? And if so, his state- ment concurs with the estimate contained in the memorial. I have, perhaps, dwelt too minutely upon this deposition, which, in a legal point of view, is unimportant. Before leaving it, however, I must suggest a probable connection between Judge Nelson's inquiries, and Mr. Webster'-^ 'etter (Doc. Ev. F 6) and his draft of the agreement of sale f>r $1,000,000 (F 66), which will be hereafter more speciahj noticed. I now pass to a document and depositions of a more extraordinary character than any heretofore noticed. I allude to a paper called a Report, signed by three men — Messrs. Applegate, Rinearson, and Carson, and produced with their depositions. Report and Depositions of Applegate, Rinearson, and Carson. (Pt. 1, pp. 265, 314, 356). — These depositions are very long, and I do not propose to enter into any elaborate analysis of them. It would be a trial of patience and waste of time to do so. I shall restrict myself to an exposition of the char- acter of this attempt to manufacture evidence, and of the manner in which it has been carried out ; and then specify briefly, the grounds upon which all the statements of these th:ee witnesses, whether in the Report or out of it, must be considered as wholly unreliable and worthless. The contrivance of appointing experts, or a sub-commission, to aid, by their light, the deliberations) and to L » 1 i 158 anticipate the decision of the gentlemen appointed by the respec- tive governments of Great Britain and the United States, appears to me remarkable for ingenuity and not less so for some other quali- ties which I am unwilling to specify. But the choice of persons is still more remarkable. Three men, known for their hostility to the Company, are selected for the purpose of visiting and valuing, or rather undervaluing its property. The leader of these, Applegate, declares (p. 311) that he has " written, published, and expressed his earnest opposition to the claim " ; one of his letters will be found in the Doc. Ev. (F22, No. 5, p. 483) ; that he has " an earnest and strimg bias against the claim, and has done all in his power to weaken and defeat it." The others are less bold in avowing their enmity, but it is apparent from the whole tenor of their answers, that they are not less virulent. Neither denies his "Jjas." As to Rinearson, see Cross-Int. 253, \.. 354, and as to Carson, Cross Int. 188, p. 37S. The latter also admits (p. 367) that the report was made as favorable as possible to the United States ; this witness or commis- sioner, has, moreover, a large interest in the rival city of Portland. The report was written by Applegate (p. 357), an educated and in- telligent man, under whose direction and control his colleagues of a lower class, evidently acted. It may be considered, indeed, altogether his work, the others being merely subordinate assistants. After having received from the Counsel of the United States in Ore""" n, instruc- tions which will be found printed with the deposition of npplegate, (p. 269,) together with a supply of the necessary funds, the experts entered upon the fulfilment of their mission ; and that they fulfilled it to the satisfaction of their employer, is manifest from the Report, Avhich as one of the witnesses has truly said (p. 367) " was made as favorable as possible for the United States." But, as not un- frciiuently happens with zealous and unscrupulous partizans, they have overdone their work, and when in the position of witnesses they are forced to explain and justify their Report, they are com- pelled to make avowals which expose its utterly untruthful and worthless character. That in making it they had no personal knowledge on the subject is apparent from their own statements. So .gnorant were they, that Applegate did not known that there was any conflict of claimants, or uncertainty of title to land at Vancouver (Cross-Int. 200-201. p. 308); and Rinearaon in 1866, the respec- :es, appears other quali- f persons is tility to the valuing, or Applegate, pressed his >e found in amest and to weaken >ir enmitj, that thej iinearson, t. 188, p. i made as r commis- Portland. ■d and in- dues of a !together r havini; instruc- plegate, experts fulfilled Report, s made not un- s, thej tnesses I com- il and rsonal Dents, there ^d at 1.866, 159 the date of his examination, did not known that in 1860 there were any settlers beside? Short on the Companay's land at Vancouver. (See Cross-Int, 231 to 241, p. 351-2-3.) The report is all based on loose information and vague rumor, and has scarcely one legally proved fact to sustain it. The claim- ants might, therefore, have moved for its rejection with all the evidence relating to it. But without offering a formal motion to that effect, I submit, that the whole of the depositions as well as the report are objectiouablo and inadmissible as evidence : Isfc. Because they relate to the value of the Company's property in 1866 (Applegato, 268, and Report p. 271),longafter ithadbeen compelled to abandon all its posts except Colville, viz : six years after the abandonment of Vancouver, and the posts dependent" upon it, and ten years after the abandonment of Walla Walla aad the posts dependent upon it. 2nd. Because the witnesses have a strong and manifest bias and hostility against the Company, and especially against its present claim. Brd. Because their examinations, and the Report based upon them, are ex-parte^ and neither these nor tiie depositions have any other foundation than vague hearsay and loose rumors. 4th. Because the length of time taken for the examination upon which the Report and depositions are based, was obviously and ab- surdly insufficient for the purpose, and was a mere pretence to cover a foregone and unfair estimate. 5th. Because it is shewn by the depositions that the Report is dishonest and untrue. The 1st, 2nd, and 3rd of the foregoing grounds, I leave without remark. They will be found to be amply sustained by the refer- ences already given, and by the whole body of the depositions. The 4th and 5th grounds are suggested by some striking passages in the evidence, which I cannot pass over in silence. The first of tliese relates to the time and mode of examination at Walla Walla. The time occupied, according to Rinearson, (p. 334) was two hours or three hours, which must have been before and about sunrise, before the steamboat in which they went to that place left the landing. Applegate (p. 289) and Carson (p. 367) say I i I:: 160 h:w the evidence of the claim,„f 'T '' " "^P^'W to over- tfmted States, and to l^ a b^i, ?" V"' ""» ">""'' »f that of the ^"- As to the „>odo of ZlL^: 'r^,! "^ *« Con.mi3sion! -me references, and need, „~ ^e"" '.'' «>-'J "nder the At Vancouver the whole time timTfT^ P'*"" ''^ "hwcter.- a, » a "a-rCAppiegaterS^ ,'otlt:f r"""*"™ ^ '^ P- 320) were bestowed np„n the L„ «."'"'"" («''«'»'•»», he Fort, that is to say, „n^„ arta ^ L ' "^ '*"'^ "»"«'' to the Fort and Militar/Reserve, vZd i„1^, T"^ "'"^''' '-"M"? The remainder of the time whir^ T. f" ^^'^ «' *5 the acre »med to have been emlyed i^ ''' ^' '"' '^^. >»"«' be l^.' -tain the value of d,S f, ^f °- ^^0 square miles J . inown as the 1st, 2nd, 5rf, ^'Z,^ " "P™ the several plains ammg information on the vie 1^;. .""" P''^"' »»<' '« ob the town lots. "^'"^ "^ the niill sites, and also of ^^^^^^^t^^iSz:':':"'' ^^ -«» ^^'thm this umit 306 to 310 ; i„ Ki„,arson's from™ » o f^f^S^'^ deposition, p from p. 368 to 3T8. ft is worthv'^:>f .■ ° 'f ' "'«' » Carson's named, from whom inquirv ,„ . ""' """ *« ""ly persons ^^. was one Ma.berr.Tfarer": :'C *' '*-'": from Vancouv.,r, (p. 30r and 374) „L V""*" "'''»■'' =:«tat f;'' (P- 327), who,, „ ™;;-»>' »d perhaps also, from Dou- has already been spoken of • aL ';™t™<>,otory testimony h^ t at portion of th'e prVerJy^ tro . ! '"t""""'"" *^ -«-»" be very wearisome, and I tLTr- ^ '""» "^de. It would Retails of the inconsistencies elil':™"""'''"-^' *° S" 'n'o the ^»P%od in this mode of IZZTZ' "' "^'P"""" '««' &'« The esfmate is too absurd, even wL! ^ fT"'*'^ "' Vancouver »>» who made it, to entitle itl/" '''''"^ ''' "'"o'^ of these loss than a tenth of the vJua-il TT'"' ' ««sidoration. It •' * witnesses of the vLt7ZZ " """^ '' '"■^ "-' -Jo was or was from their arrived late ^ it was in ' staj at the ted to over- ' that of the ^ommission- t under the laracter ition was a Rinearson, nearest to including ' the acre. st be pre- Jles to as- ■al plains id in ob also of 318 is h'mit really ition 'arson's persons town distant Dou- J has timate would to the faith uver. these It is pect- 161 The time occupied at Colville seems, although there is a good deal of shuffling and equivocation about it, to have been one day. The mode of the examinations there, and indeed of all the examinations, is exemplified in the visit to the mill. App legate says they were £it the mill an hour or an hour and a half, and finally states, that he did not know the time ( p. 297 ). Rinearson (p. 343) thinks not over half an hour, but is sure it was more than five minutes. — None of them went into the mill (p. 298, 343, 345). Carson knows nothing about it except what Applegate told him (p. 359, p. 260). The mill was valued at $500, this being their estimate of the ma- chinery (which they never saw, p. 298) ; although it was assessed as they knew at $1,500. The site and water power was not valued at all, although it is worth, even according to Applegate's opinion, $5,000. I pursue the subject matter of the fourth ground no further, and proceed to a few observations on the 5th, viz : That the depositions shew dishonesty and falsehood in the Report. The dishonesty of the Report is manifest from the mode of examination at Vancouver and Colville already referi^d to, and equally so, from the evasive manner in which the Cross-Interrogatories relating to it are an- swered. But this is not all, the Report assumes to contain a valua- tion of all the real property claimed by the Hudson's Bay Company at the posts to which it relates, (See p. 271, and p. 357) ; yet it passes, in absolute silence, the mill site at Colville, valued by Apple- gate at $5,000. And the answers given by him ( p. 298), by Rinearson (p.346-7), andby Carson, (p. 357-8,) expose, as shown above, the kind of valuation which was made there. It must be observed of this Report,that it is expressed in the positive and absolute form. It is not said in it that the experts were informed, or thai they have reason to believe, this or that, but the state- ments made in it are unqualified affirmations of fact ; and in this form it has been sworn to. Now, it is scarcely necessary to pre- miso, that in so far as truthfulness is concerned, there is little to choose between a man who alleges what he knows to be false, and him who alleges as true what he really knows nothing about. These witnesses convict themselves of both these forms of falsehood. As an example of the latter, in speaking ot Walla Walla, they say, (p. 272) " in which year (1860 the old fort was sold by the re- M I m 162 Walla Wal,a." :„.,ll : -"of:: ."T"'"-^ "^ '"^ *<»™ " shadow of a foundation for °r„rr^ """"«" 'hereisnotHe bj the in,ta,ction,ofthe offi ; o^e r" " " «— agination "i "t S"ch a fabrication, the it t^°"P""{' '''"> «^e astound" se JOS, tho^ give for reason (p^Zll Tf'"^ '» J»'«fy them- "ThrS^r "'""' *^ WhitfK^"™ »f «-e.,a„p,e,-n "^ I'Ompany ceased to cnltiv,f„ •/ • , "^ expression is-_ '«'« put in possession." /"„..! '" ^***''' "»'' J- J- Deme,^ «V3he obtained his inffrSf'^;™ ""^-^^-"'ination, („ ogt P--ed, he admits thattrMDo"^ »^'-- MeD„„„M. ' tf„! ™» ■« possession." Not beinf ""^ ''"^ »« "erei; --on, he is stili further urged f/ern". '" "^'^P^ »"» hfe »f conversation with MeDonafdHl ''"'''" P«"'™«his notes found under Cross-Int 14T /^ ''"''"'''• ™ ''oing so ■ will L 7^ *at Benders and Vo, fbuiftt" "/""""•• " *' ^c^ » d Demerstook possession of the C„'°'f ^"""P^y'^ e^m, and o.yed some of it, and left sime „f?!"^' ''"''' VropeHy,' i"s 'he protest of the Co„,p 1 %f ." ^ »<«"S ; »" «-as Le ^ bv * V' '^""'' '" the Rer^rt^^: *»' « *e information .^ It i or r '^' '""'■°°''' hacked by the L"! "" """" ''™' *- - ^"^y of elibrtirthtl"' • '''""'''"™ «"" i haveyMded t tb themselves TI,7o ^''"'"' '" "'hich these m. t ° *" '^- *o,r;ha'^'c e?r C" '""'^^^' ''- " ,^7,^ e sum of nine of the town of here is not the ss-examination were astound- > justify them- 'Johnson, the ^ assertions fiers, hy per- ""e? and they ' example in ession is : J. Demers ^on, (p.299) '"• Beini" lid merely upon this ■e his notes Oj'-wi]] be ^fcDonaJd ^aim, and ^^y, des- »e under "^on upon ossessior '1 this a^ an oath, ^aced in Joramit- to the placed If felt from maj, mong 163 ■whom they live ; but the predicament in which they now find them- selves, so far from being respectable, is a most humiliating one, and affords a strong illustration of the wisdom of the old rule which would have rejected their report, and all their evidence connected with it. The obvious objection, legal and moral, to such a report is, that the witness becomes pledged, while subject to the influence of one party, and not under oath, to statements from which he cannot afterwards consistently or safe- ly depart. The contrivance by which these statements, first obtained ex parte, and afterwards sworn to ex parte, is such that the witness, when brought up for judicial examination, must persist in them. He is compelled to swear (to use a familiar expression) through thick and thin, for he must either sustain his sworn report or convict himself of perjury. Applegate evidently felt this, and has endeavored, with great hardihood, to justify the report. Rinearson and Carson have followed him ; but the former seems to have some twinges of conscience about it. His admission that the time taken for examination was too short, already referred to ( p. 338, ) ; his answers to Croas-Int. 242 and following to 246 (p. 353) in relation to one " clause in the report " (not specified) with which he was dissatis- fied, and to making a separate report ; and his attempt (p. 346, 347,) to force a meaning upon his instructions which would excuse the omission from his etimates of t! e mill at Colville, accompanied by the volunteer declaration that he did not do so " through any design whatever," all betray a consciousness of wrong doing. Carson, how- ever, shews either a singular obtuseness or a desperate resolution to persist, right or wrong, in the Report. His answers relating to the mill site are too curious to be passed over in silence. He states under Cross-Int. 3, (p. 351) that the report contains a statement of the condition and value of all the real property claimed by the Hud- son's Bay Company at the posts visited by him. He is then ques- tioned as to the reason why he did not value the water power, and a series of most remarkable answers contained on the same page leads to the Cross-Int. 9 : "Do you not think that a water power in use by a party is as much real property as land," to which he boldly answers, " I do not consider it so," and then declares in his next answer that it is not personal property ; what it is, he does not venture to assert. This is a specimen of the dishonesty and utterly abusrd answers given by this man. f nl il ■! 164 "'•ting to it"' Vl *" **' "^ *» Report or .<• .. mtrathfuhe ; ^" ,?'"'"»' ">« exposure of'ta i "'* "*•"'» 'iould both be read "r- ''"^'"'■»''- ^^^ T»esl^T:f'"- '^^' *o lands near »L \ ^'^ statements in tlr i !? ""^ »'"''«'• which is SI ir ^''""•^ «e«e'' influence of tin """''-^»'"' « his all, • *" "^'« ««"» fa- r- order that th. ^'^°"' »«e»t for the •""fee to his testiml/"'""* »f oyeotion which it .- ' few words in TT^ T' "^ ""^^er underabZ t "^ ^"^^ '» Company nfr™^ '^""'"•'"O'and Ze^?^^" f- """" ''^''o* » ^ ISS^with^.' " '"' "'" of him'^fets •^'*'T ^""■^^ tto W. M, 15 VTr''*''«o "ort d 01^', "'""' formed the ^»»nS Le'" *" ^"O) ""d also D ['^'^2'>'012,, ■"oaves arri„r.T- *"«' his conduct 1„\*: ^''^^ » ""e "o^'el.the <7<>&«jr „ .^''''''^e '-terest Li,'":'*^. «■« P^redbyhinaelffo'l "* ^"o^Pts, in answer to „ '''^'""' *o latter; but ft? t^Zr ''"• *«' P" ««'- ?-"""" '"^ "roAtahle fact preciset^^-! f. .'^T?'!''^ ■ m ' Stated in Mr o^ 'r'' *^ «« i»lr. Ogden's letter. D2. ^ t^^e evidence isistencies and ^'^^'^y page.^ '^oss-Int. 215, ^nd answer ^ ^" appljr ^*» and the ■ Macfcavish, •<^f r to shoT^ ' intelligent lands which ^''nte upon *6 facts fa- beneficial s 'etter to fnterroga- torj 185^ 'nch that on. 1-. Gibbs' rom the f Clerk for the utjta stow a is the •ence, I the 12a, the two the tion )re- ^ay Iis> If :3 165 This transaction, of which immediate complaint was made, was cen- sured by his government, (C 15 p. 402) and it is not to be supposed that the rebuke he thus met tended to soften his animosity towards the Company. From that time downward he has continued to be an intelligent and notoriously active and unscrupulous enemy of its interests. On the creation of this Commission he obtained the situation of Clerk, and as keeper of all evidence, records and pro- ceedings connected with it, has had great facilities for aiding the defence. Those facilities, as shown by his own avowals, he has not been sparing or negligent in the use of. He has been, in fact, the chief, and beyond all comparison, the ablest, most active and most efficient of all those employed by the United States for that purpose, with the exception of the learned Counsel who represents it. In proof of his zeal and activity, I refer to the following pas- sages in his evidence in the Puget Sound Agricultural Company's case, which, by his answer to Cross-Int. 656, is made evidence in this case also. These passages begin with the Cross-Int. 112, on page 340 of the evidence in that case, and continue on the three following pages. Nothing can be clearer or stronger than the manifestation of zealous partizanship, in favor of the United States, and unqualified hostility towards the Company and its claim ; not merely the actual claim, but to any and all claims by it. He admits that he has usually informed Counsel of the points upon which the wit- nesses should be examined, and furnished them with notes for that pur- pose, and has also furnished the questions for cross-examination ; has of his own accord, and without instructions, corresponded with persons for the purpose of obtaining evidence, and searched out witnesses and learned what they would testify, reduced their statements to writing, and then informed Counsel of their names and the substance of their evidence — has " been diligent in the matter and attended to it with zeal." All this, notwithstanding his situa- ution and duties as clerk of the Commission, he has done as he thinks a citizen " should do for the purpose of preventing impofition upon the United States, and actuated by the feeling of a strong convic- tion of the injustice and exorbitancy of their claim." The whole of Mr. Gibbs' doctrine with respect to the rights of the claimants is tersely but fully embodied in the following answer to the Cross- Int. 119, (p. 342), in the Puget Sound Agricultural Company's 166 case. *« I liayn '» "Territories o„ Se!"'""'^ "" "'^'of thf(^„tJsf,f'''»P»y "'"GreatBritain A ."'"'*'"'"'» 49th para Ll ! '' ""' " '»" within to area J°,r° ^"^'«°» -^^'h"' c^t inT ^"''" "^ "Treatv l.^»„ '^ "'" "'aim ha™ not . .u *™' «''»»■ freeij e:tnr' 7. ' "P'-e^^ed." These ^TP""^' ^ ha-'e had countr„ Tt ' ""^ '"Pi" hoin.- one „f ' ' ^"^ "''''wy, of ^mtrj-, which nas not onlv „f • "^ general mterest in fi. but came home f„ . ^ °^ ™portanoe to tl,o ^ ** opinions andt/ ""'^ "■*"'« 'i'"'- Of L ^^^n-nent, them aln A ":•'''' ^"^ °f 'ho bitterneL „f JT"''"^ "^'hc *a; their righttn/S^ States a "S"' "f L^'i^^'^"'" •declared and embodied i^H "^ Hudson's Bay Com„°. •^' ' N""'. I mate no i •*' *"»^ '^''^a'y. ^ ' ""•" "^anj people who svmn^^ Cooipanj,; „or to his W *^' ^' agent, and witness; to the un. I*«get Sound Hudson's Bay >ciation was to •any could not ^atjr of 1846, : the partners 3 ^pon public ' a Company States to the vas given up ^arma situa- 'rmsofthat ■ have had says, were military, of •est in the >vernment, h"tj of the nduced by s affords a had from j's case, The fact admitted n's Bay States," fore the tj, and 'J were «• 167 fairness, I will use no stronger word, of becoming the official and con- fidential keeper of the evidence and documents of the claimants, and availing himself of the opportunities of his position, to do all in his power, as the chief agent in defeating their claim The re- cords were not confided to him to enable him to communicate their contents abroad for the purpose of obtaining adverse evidence ; and the claimants are entitled to complain that they have been taken at a disadvantage by having this secret and active enemy in an ofiicial and confidential situation. There can be no doubt in the mind of any just or reasonable man, that there is an irreconcilable incompatibility between the office of clerk of a court and that of advo- cae, tand more than advocate, for one of the parties before it. There is always danger from such a double position. It is shewn in this case, by the fact that, in at least one instance, an interpolation has been made, (as explanatory) by which testimony already unfavorable to the claimants, is made still more so (Brooke's Ev., Int. 21, p. 132 And on the same page " $1 per acre " is printed instead of islOO which it ought to be. Mr. Gibbs being the keeper of the only record of his own deposition with the others, has an opportunity of making changes which it would be difficult to detect or prove. Of so base an act I do not think he would be guilty, but it is not the less a mani- fest anomaly, that such a power should be possessed by one who has shewn himself to be an extreme and active partisan I do not believe that in fairness his deposition ought to be rceived at all, and if received, it must be regarded with the distrust which necessarily arises from the situation in which he has placed himself. Bui it is not only from the diversity and incongruity of the char- acters in which the witness appears, that his deposition is remarkable. It is equally so in the indiscreet and reckless zeal apparent in his ef- forts, not only to weaken or reduce, but to overthrow and utterly de- molish the present claim. Mr. Gibbs' testimony may be described as -joining issue generally upon the claimants' case by an unqualified denial of it as a whole and in all its parts. He gives us not only assertions on matters of fact, but also sworn opinions in matters of law. He speaks of all the Posts except those atUmpqua and the Flat- heads. He also speaks of the trade, of the navigatiunof the Colum- bia, the portages upon it, disparaging all, and swearing to the no value of all but two or three of the properties, { and tothe little value of these. .%. ^, Jl». -'^■ ^'«>>. ^ns !MAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 11^ ■ so "^ IS U 2.0 1.8 1.4 1.6 6" V] /^ ^;. '/ /A Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ^ /u o^ ^ 1 168 I do not propose to follow his deposition through all its details. I do not believe it would aid the Commissioners in their appreciation of it, and I feel it may be safely left to a careful perusal to shew its worthlessness as evidence. But I must point out a few examples of rashness of assertion, inconsistency, and self-contradiction, and then in general terms refer to testimony from witnesses for the United States only, which shews how little he knows of the. truth, , or how little he is disposed to tell it. I venture to aflSrm that not one of his statements material to the case is strictly true, and that, ex- cept with respect to his alleged conversations, chiefly with a man now dead (Mr. Ogden), there is evidence in the depositions taken for the defence to shew that he is never accurate, and for the most part is grossly incorrect. The first example of his recklessness of asser- tion occurs in the outset of his deposition, (Int. 6, p. 401), in which he says " the site at Astoria was generally considered the property of the U. S. Government^ and held by the Company on its behalf , as it had been captured during the war of 1812, and at its con- clusion finally restored to the U. S. Government." Upon the question of capture and restoration it is not necessary to enter, although the statements concerning them are incorrect. But if correctly stated they only changed the sovereignty, not the fee or right of property which was first in Mr. Astor or the Pacific Fur Company, and passed by purchase through the N. W. Company to the Hudson's Bay Company, by whom it was held uninterrupted- ly until taken by the military authorities of the United States. From Mr. Gibbs' intelligence and information he could not have fallen into the absurd error of supposing the right of sovereignty and the right of property to be the same thing, and I see no way in which he can escape from the imputation of wilful misrepresenta- tion in thus confounding two things which he must have known to be so different. His answers on cross-examination on p. 423 and following pages to 427, and particularly to Cross-Int. 35, shew how incorrect and inexcusable were the statements to which his un- checked partizanship carried him on this subject. I refer to these as an example of the eagerness with which unfounded assertions are hazarded sometimes upon matters which he ought to know and aoems determined to misrepresent, and sometimes upon those concerning which he knows nothing, and is compelled in cross-examination to k 169 take refuge under pretended general conversations, he cannot say with whom. Instances of the latter, among others, will be found in the answers on pp. 442, 443, and 444, relating to a supposed transfer of the route from the Columbia to the Fraser Rivers, about the year 1853 ; in those on p. 501 and 502, relating to the settle- ment by servants of the Company on French Prairie ; and in others on p. 503 relating to the Cayuse War. The question on this last subject (Int 38, p. 416 was prepared by himself, as ho avows (Cross-Int. 541) for the special purpose ot enabhng him to make an unqualified statement concerning that war, which on cross-exami. ination he was compelled to admit was mere hearsay upon a matter which personally he knew nothing about. The manner in which he covers rash assertions by " convictions " appears in his answers to Cross-Int. 327 (p. 470). None of these answers are of any real importance in the case, but they shew the kind of witness with whom the claimants have had to deal. The inconsistencies and self contradictions are not less numerous and striking. One class of these is to be found in the manner in which he frequently changes and almost always intensifies in his testimony, the statements made by him in his Report furnished to General McClellan in 1853, fyled with the Documentary Evidence of the defence. I pass them, with a brief reference to one or two. In his report, he says of Okanagan, " liprohahly did not pay expenses." In his answer to Int. 19, (p. 407), he says, " It clearly did not pay expenses," although in making that answer he had the report and the noteo upon which it was founded before him, and says (Cross-Int. 177, p. 447), " that he dictated the answer from them and had no more personal know- ledge at the time of examination, than he had then." I refer also to his answers pp. 447, 448, and also 454. His mistakes, forgetful- ness, and self-contradictions concerning the Mill and White-mud Creek (see p. 405, 445, and 453), are iadicative of the uncertainty of his memory, and that whether from his over-anxiety to sustain the defence, or other causes, its accuracy could rarely be trusted. The addition in his deposition of words not used in the report, such as ** rotted down," when speaking of the structures at Colville (p. 404 and 441), and afterwards, " Mongrel crewy &c.," (p. 465 and 466 ), in speaking of Vancouver, are significant of the spirit which infects all his testimony. These differences are not accidental, for V- i 1 1 170 the witness had this report constantly before him, and had evidently been studying it carefully in preparation, not only for his own exam- ination, but also in his quality of advocate or assistant counsel in preparation for the examination of other witnesses. His motive, therefore, in exaggerating and distorting the expressions used in the Report cannot be misunderstood. His having done so is of little con- sequence except as a betrayal of embittered feeling and unscrupu- lous hostility ; for the report, which is even more hostile and super- ficial than one-sided official reports usually are, is for the most part equally unreliable with the deposition. But besides these depart^ ures fom his report, there are palpable self-contradictions and mis- representations apparent upon the face of the deposition itself. I request attention to his declaration (Int. 9. p. 401), that some re- marks of Mr. Ogden left on his mind the impression that Cape Disappointment was his own private claim. These remarks are ad- mitted on page 428 (Cross-Int. 58), to have been made jocosely , and the witness then changes his ground to another assertion, equally unfounded, that the land was held for speculative purposes. (See Sross-Int. 60). Again, after describing Walla Walla, includ- ing the farm (p. 403), he says ; " I now diatinetly recollect the cor- rectness of this description, and that it was founded on my per- sonal observation;^^ but on page 437, in answer to Cross-Int. 112, speaking of the farm, he says : " I do not remember whether we passed it or not," &;c. I solicit attention to this answer, and those following it. Other self-contradictions appear upon a subject which the witness has considered of sufficient importance to render necessary a ques- tion prepared by himself, in order to introduce a long and specious justification of his own conduct. The question is the 43rd (p. 418), and is in the accustomed form adopted by the witness when he wishes to bring in irrelevant matter, or get himself out of an em- barrassing situation. He wishes, he says, to make a statement touching his acts as Deputy Collector in Oregon, and he goes on with a labored effort at explanation of his conduct towards the Company in the matter of the Prince of Wales^ and as Collector generally, giving himself, of course, an excellent character, and saying " unhesitatingly ^^^ that no vexatious embarrassments were thrown in the way of the Company by him. The claimants say 171 as unhesitatingly^ that no opportunity was lost by him to throw vexatious embarrassments in their way ; and not only is this proved by documentary and other evidence, but it is further proved that he had both a hostile feeling and pecuniary inl^rest to gratify in so doing. He is unfortunate in his answer in explanation, as he ex- poses himself in it on two points. First, in his anxiety to cover his acts with some color of authority, he says (p. 419) Mr. Holbrook, the U. S. District Attorney, was present when the order to the master of the Prince of Wales was issued. In cross-examination (p. 517) he is made by Cross-Ints. 633-4-5-6, after a good deal of equivocation, to admit that Mr. Holbrook was not then present. Second, he denies, as far as he feels that he safely can, his interest in the opposition steamer, but when closely pressed to say whether his name did not appear on the register as one of her owners, he can only escape by declaring that he does not remember. Of the probability of this failure of memory, when coupled with the fact that her register would be issued by himself officially (p. 618), I leave to the Commissioners to judge, merely suggesting that it is a fair inference from the circumstances, that if the witness could have said " wo" without exposure to contradiction by the register itself, he would have done so. On page 520 we have another of his ques- tions proposed by himself, and another avowal of mis-statements on two points, relating to the trans-shipment of goods from Vancouver to Victoria. The statements on this subject will be found, made with great particularity, on page 411 and pages 475-6-7, and after the close of his cross-examination, he invites an explanation, and de- clares he was altogether mistaken on the subject. It is impossible to give any faith to the testimony of a man who one day tells a story with minute details, on matters concerning which he cannot be ignorant, and directly contradicts it the next. Before leaving the intrinsic features of this remarkable depo- sition, I wish to direct attention to an ingenious device which is peculiar to it. When, by cross-examination, a truth is wrung out of the witness which shows the incorrectness of a former statement, he comes back, after ample time for reflection, with a question prepared by himself to himself, inviting an explanation. The question is always in pretty much the same form. ''Do you desire to make any explanation or modification of any part of your II 172 testimony ?" or, in some instances, " of answers to particular inter- rogatories and cross-interrogatories?" Thereupon it is pretend- ed that since his cross-examination something new has been dis- covered or remembered which he had forgotten, and which affords him an opportunity of presenting an elaborate piece of special pleading for extricating himself from the dilemma of having stated something which was not true, or denied something which was true. This kind of thing is repeated in his two depositions. It will be found on pp. 418 and 520, of his deposition in this case, and on p. 844 of that in the case of the P. S. A. Co. Apart from all other objections to this sort of proceeding, it is manifest that cross- examination, as a means of exposing the bad faith and unrelia- bility of a witness, is rendered nearly useless by it. I close my observations on this deposition by a brief notice of two or three of the striking contradictions by U. S. witnesses of the assertions made in it relating to the several posts. I would pre- mise that the witness has had really but slight means of be- coming acquainted with the matters on which he has reported and testified concerning any of the posts except Astoria. For the necessarily superficial and imperfect nature of his knowledge of the property at Vancouver, I refer to his own account on p. 458 and following pages to 465, of his visits there and the extent of his excursions around the fort, and to his answers in cross-examination on pp. 467-8-9— containing his uncertain and conjectural descrip- tion of the buildings. Most of his statements are speculative and general, and therefore scarcely admit of direct contradiction. But whenever he ventures upon specific facts, decided counter-state- ments may be found even in the evidence for the defence. I do not propose to dwell long upon these— a few instances will suflicc. Thus in speaking of the buildings at Vancouver, in and befot'e 1853, he says (p. 408 and p. 469), " that all the buildings were considerably decayed, and that from the date of the treaty, only the repairs were made necessary to keep them in tenantable order." Whilst General Ingalls in his first deposition (p. 4} says, " the Company made frequent repairs of the buildings and stockade ;' and in his second deposition (p. 524), the post of Vancouver was at the height of its prosperity in 1849 ; and (p. 525) the establish- ment " as to buildings was more extensive in 1850 probably than m 1^ 173 at any other time." General Grant (Int. 10, p. 20) says, that in 1852-3, "the buildings were still substantial." And Captain Howard, speaking of them at the same date, says : " The luildings were in good "order at that time" (p. 67). To these, others might be added. Again Mr. Gibbs says (pp. 409 and 462) that the deposit from the overflow of the Columbia is not fertilizing, while Gen. Ingalls (p. 14) declares that the overflow is beneficial, the sediment being of an alluvial character. The statement made by Mr. Gibbs respecting the roads, that there are a few miles of track about the character of ordinary wood roads, at and around Fort Vancouver, is shewn more or less positively to be incorrect by General Ingalls, Gen- eral Grant, and others. It is pointedly contradicted by General Ingalls on pp. 638-39 of his second deposition. He says in these pages, in answer to Cross-Ints. 65, 66, 67, and 68, that the roads around Vancouver connecting the different places, and down the river, were very good, " good enough to answcany purpose." And in a report made in 1853, mentioned in Mr. Gibbs' deposition , (p. 491), it is declared that " from Fort Vancouver to Camp " Wahwaikee, the wagon road, through firs with dense under- ** brush, is good." He is contradicted in his statements, or rather his denials of value, in relation to nearly all the Posts. Thus, he says of Walla Walla (p. 403), after describing the buildings, " It is almost utterly valueless except as a station where horses can be kept for the trains." Now Ankeny, a most hostile witness, estimates this post at $10,000 (p. 44). Another of the same class, Gilpin, esti- mates it at $9,000 in 1843 (p. 332-8), and Meek and Terry both speak of it, the former giving an estimate of ^1,000 sterling, and the other saying it would cost $10,000 to build it. These are all gross under-estimates ; but they shew the determined spirit in which Mr. Gibbs' declarations are made. I will add one instance more of these contradictions, and then pur- sue the subject no further. It relates to the comparative value of the buildings of the Company at Colville and those erected at Fort Col- ville, in 1859-60, by the American N. W. Boundary Commission Mr. Gibbs, (p. 406) says the latter were greatly superior both in comfort and stability, and adds, " comparing those buildings, in 1 854 ' h 174 with the dilapidated condition of the Hudson's Bay Company's build- ings, at the same period, there could be no doubt as to the great superiority, in value, of the former, to say nothing of the difference in the cost of construction at the different times they were erected." In strong contrast with this bold and sweeping assertion, is the statement of Mr. Gardner, a civil engineer, assistant astronomer and surveyor of the Commission, and who was employed m erecting the buildings. His comparison has been shewn to be very unfair to the Claimants ; but he says, (p. 203, Int. 5) the buildmgs of the Company at Colville, are not more than twice as extensive as those of the Boundary Commissicm, and probably of not more than double the value. It would be tedious to multiply these instances, which can only be exhausted by following closely through the whole testimony. Reference has only been made to the witnesses for the Respon- dents; it is perhaps needless to add that those for the Claimants disprove every statement in the deposition relating to any matter of importance to the claim. I regret having been compelled to speak thus plainly of Mr. Gibbs as a witness ; and I here leave his deposition, protesting that for the reasons assigned on the foregoing pages, it ought not to be received as making proof, in any de- gree whatever, in the case. The long list of witnesses for the United States — not less than eighty in number — ^has now been gone over. The notices of most of the depositions have been brief and imperfect ; a more detailed review of them would have shewn how little there is in the whole voluminous mass which is really entitled to be called legal evidence, or even to exercise any effect in creatmg a moral proba« bility of truth in the matters to which it relates. No body of tes- timony could possibly present itself, to which the maxim that wit- nesses are tu be weighed, not numbered, is more applicable than to that produced in the present case. Comparing the witnesses on the one side and the other, those of the Claimants are : first, equal to the others in respectability and intelligence ; second, they are, with two or three exceptions, superior in freedom from influences and motives which tend to affect their impartiality and truthfulness ; and third, they, are, beyond all comparison, superior in the means of knowledge and in perfect acquaintance with the subjects on which they speak. On this last head) the witnesses for the Respondents ^a 175 are strikingly and almost universally deficient, and no amount of statements, such as they have freely and sweepingly made, can suffice to controvert the close, compact, well-considered testimony of the Claimants' witnesses, given after a long and intimate familiar- ity with all the details of which they speak. Indeed the compara- tive credibility of the testimony on the two sides, may be put in a still stronger form. The witnesses for the United States, from the imperfectness of their knowledge, even if they were in good faith, may be mistaken. But the witnesses for the Claimants cannot be mistaken upon the essential facts to which they testify. £ither their testimony is true on these facts, or they have fallen into direct and wilful falsehood. Whether the latter is a possible hypothesis, I leave to the consideration of the Commissioners, after a care- ful perusal of the whole testimony. I have no apprehension of the result, for I am satisfied that, in just and intelligent minds, the balance can incline but one way. I now proceed to another subject. i" RIGHT OF TRADE. v. .. . The right of the trade of the Company south of the 49th parallel of north latitude, and its value in 1846 and for several years after- wards, constitute the second branch of the Company's claim which, is now to be examined. « -v r . «*:.^ -jnj,^^ v. a That the Hudson's Bay Company had in the re^on known as Ore^ gon in 1846 a wide-spread and lucrative trade, and that this trade was, not only under the grant from the Crown, but virtually and in fact, exclusive, cannot be denied. The business of the Company con- sisted chiefly in the purchase of furs and other articles, in exchange for merchandize. For this trade the Posts and establishments al- ready described were maintained over a vast extent of country stretching from the 43rd to the 49th degree of north latitude, and covering about 12 degrees of longitude from the 112th degree west, to the Pacific Ocean ; the travelling distance between the extreme posts within these limits, being little less than a thousand miles. For all the purposes of trade the Company held undisputed possession and control of all this great re^on. Besides the chief trade, it had an important foreign trade , exporting large quantities of provisions, fish and timber, and other articles>of commerce; The I ,i •I 176 annual profits derived from the trade with the Indians before and in the year 1846 are declared in the Memorial to have exceeded j£ 7,000 sterling, but this is much below the true amount, which reached an average exceeding j£ 10,000 stg., or about $60,000. The value of the entire trade and the loss suffered by its destruction are stated at X 200,000, exceeding 1973,000. It was this trade, of which the Company was in the full enjoyment in 1846, that the United States were bound by the Treaty to respect, as making part of its "possessory rights." The evidence bearing upon the whole subject will be found ample and satisfactory. Much of that already presented relates to it, and goes to shew the magnitude of the interests involved in this branch of the claim. The statements of a more direct character are derived from Mr. Lowe, Sir James Douglas, Mr. Mactavish and Mr. Anderson. The testimony of all these witnesses clearly estab- lishes that the estimate of the Claimants on this branch of their claim is less than the facts would justify. Mr. Lowe says : (p. 11.) — " As accountant at Vancouver, I had " to make up the books for several years, say from 1844 to 1849, " and during these years the balance sheet showed large profits, as " much sometimes as thirty -five thousand pounds per annum.* * At *' the time of the Treaty in 1846 the foreign trade was confined to " the Sandwich Islands and the Russian possessions on the North- " West coast. The exports to these places consisted of lumber, " pickled salmon, flour, butter, and produce, and in 1848, soon after " the discovery of gold mines in California, an extensive trade in " these articles was opened with San Francisco." Upon cross-ex- amination (p. 25) he states that it was iji 1847 that the profits amounted to X 35,000 sterling. This comprised the profits of the whole trade on the west side of the Rocky Mountains, as well north of the 49th parallel as south of it. Douglas. — The next witness, Sir James Douglas, from the position he held in the Company and his long connection with it, is enabled to give evidence of great particularity and value upon the subject of its trade. His account of it is contained in his answers to the interrogatories 3, 5, and 11, and cross-interrogatory 2, in the following terms (p. 60) : " I can state as a well known fact that in the year 1846, and W| ^1 177 •I 4 and " long before, the Hudson's Bay Company did carry on an cxten- " sivo trade in furs, peltries and other articles, with the Indians " throughout the whole of that country then known as Oregon, as " well to the south as to the north of the 49th parallel of latitude. " In carrying on that trade, they built and maintained many posts " and establishments, which were permanently occupied by their " agents and servants in and before the year 1846, and afterwards ; " and they moreover kept on foot several hunting and trapping " parties, and practically held the complete control of the fur '* trade of the whole territory ;" and he says : (p. 52) " From " 1831 to 1^49, I was stationed at Fort Vancouver, and '' during that period, and up to 1859, when my connection with " the Hudson's Bay Company finally ceased, I was intimately " acquainted with the Company's business, and can therefore <' distinctly state that the Company's trade with Indians at their '' different posts and establishments in Oregon, south of the " 49th parallel of latitude, for a series of years extending from *' 1841 to 1846, yielded an average profit of at least seven thou- " sand pounds sterling annually ;" and, — (p. 68) " I don*t think *' that it varied much from that sum in other years, besides the " outlay on buildings and other permanent improvements at the " different establishments, which, at the close of each year, was " written off the books, or, in other words, carried to profit and '' loss account. Had this expenditure been carried to capital, as " is customary in almost every other business, the profits would " have been much larger than the sum I have now stated. I " would also observe that the yearly increase of live stock, such as " neat cattle, horses, sheep, pigs, &c., &c., at the Company's esta- " blishments, were not included, and did not form an item in the " annual profits." And on cross-examination (p. 55) he says : " The fur trade was the chief object of attraction to the Hudson's " Bay Company, and probably led the persons who established the " trade to embark in the business ; but ever since I have been " employed on the west side of the Rocky Mountains, the Hudson's " Bay Company have been carrying on trade in other branches. " They had, for instance, a business establishment at the Sandwich " Islands, another at San Francisco, and %ey exported considera- " ble quantities of grain and produce to the Russian settlement at 178 " New Archangel. These establishments were all connected with " and depended on Fort Vancouver. They also made shipments of " lumber and spars to the coast of Chili. The business of the " Sandwich Islands was started before I came to Fort Vancouver, *' that at San Francisco after my arrival there. The shipments of " lumber and grain to the coast of Chili and New Archangel were « made during my residence at Fort Vancouver." His answer to the 11th Interrogatory (p. 54) gives an idea of the magnitude of the operations of the Company. " The whole ** force maintained at the Company's several establishments '' on the west side of the Rocky Mountains at the period re- " ferred .o in the query, averaged about 55 officers, and 513 " articled servants, besides a large number of native laborers, "whose names did not appear in the Company's books. The " Company having a large, active, and jxperienced force of ser- " vants in their employ, and holding establishments judiciously *' situated in the most favorable positions for trade, forming as it " were a network of posts, aiding and supporting each other, pos- " sessed an extraordinary influence with the natives, and in 1846 " practically enjoyed a monopoly of the fur trade in the countries " west of the Rocky Mountains, north and south of the 49th " parallel of latitude." Mr. Mactavish, whose connection with the Company began in 1833, and has continued ever since in departments which rendered necessary a perfect acquaintance with all its business, fully con- firms, in his answer to Interrogatory 3 (p. 197), the account given by Governor Douglas of the extent of the trade and the occu- pation of the Oregon country for purposes connected with it. He then goes on (pp. 207 and 208) to say : *' The principal trade carried on at the posts of the Hudson's " Bay Company, west of the Rocky Mountains, was with Indians " for furs, peltries, and other produce of the country. The profits " of that trade, at the posts in Oregon, south of the 49th parallel, " in the year 1846, and for years previously, averaged more than " seven thousand pounds sterling per annum. * ♦ ♦ " For some years previous to 1846, there was a considerable •' trade carried on from Fort Vancouver, in the export of lumber, " spars, shingles, flour, and salt salmon, to the Sandwich Islands, lected with "pments of '688 of the i^ancouver, upmenta of ingel were an idea of rhe whole >Ii8hments )eriod re- and 513 laborers, ks. The B of ser- idiciousljr ing as it Jier, pos- in 1846 Jountries he 49th »egan in endered 'llj con- 't given e occu- ■t. He adson's ndians profits arallel, e than • erable imber, lands, :^ 179 ** the profits from which trade would average probably, ten thou- *' sand dollars annually ; there was likewise quite a business be- " tween Fort Vancouver and the Russian American Fur Company " at Sitka, consisting in the supply to that Gompan < annually, of ** flour, wheat, butter, pork, peas, and beef, on which trade there *^ was an annual profit averaging from eight to tei thousand dollars.'' The profits of the entire business generally kept up pr' tty well for somu jcurs after 1847. In 1853, owiug to sevcrr^.^ causes, the profits had diminished very much (p. 231). The number of officers employed west of the Rocky Mountains, he states (p. 212) at be- tween 50 and 60, and the number of men over 500, besides Indians employed as laborers and voyageurs. Mr. A. C. Anderson, after giving on pp. 40, 41, 44, important statements concerning the business and the causes of its decline at certain posts, goes on to say (p. 46) '' that the value of the trade, ** irrespective of the fur trade, so far from having decreased, had not *^ only maintained its position,but even in sp<>cial years exceeded the ** original amount For outfit 1849-50, the balance of profits for the *< Columbia district amounted to between thirty-seven and thirty- *' eight thousand pounds sterling, of which I estimate that about " twenty-two thousand ori^nated at and around Fort Vancouver. I *^ would likewise explain that in regard to the necessity or advisabi- *^ lity of abandoning Fort Vancouver, it was not that the Company << were not desirous of continuing the trade, or that the prospects of *^ the trade were not sufficiently encouraging, but arose from the *^ serious outrages and petty annoyances to which they had been " for some years subjected." And he adds (p. 47) : ^' The extension of ir&Je, to which atten- *^ tion has been drawn, was not in consequence of anything arising ** from the Treaty of 1846, but arose from natural and infallible *' causes, depending on the gradual settling up of the country. This ** increase had been foreseen on the part of the Company, and to a " certain extent provided for. The cession of Oregon, under the *^ Treaty of 1846, and the consequent negociation for the transfer to " the American Government of all our rights and possessions in their ** territory, retarded all further proceedings ; subsequent events ** still further interfered." It is in evidence that before any decline in the fur trade as a I r {ioA^ 180 natura! and necessary consequence of the increased settlement and civilization of the Country, that trade was forbidden by the authority of the United States and was moreover destroyed by its wars with the native tribes. But the buying and selfing of furs was not its only business, and if the Company had been left unmolested and its rights had been respected its whole trade would have changed with the changing circumstances of the Country and have become in its new form even far more profitable than in its old. It would seem scarcely possible in face of the intelligence, posi- tion and complete statements of these four witnesses whose evidence on the trade of the Company has been in part cited, to doubt its extent and value, and it may be deemed superfluous to bring spe- cially under the attention of the Commissioners, the additional proof derived from the testimony obtained in England. That evidence was taken by the consent of parties. The examinations were not conducted by way of interrogatories and cross-interrogatories writ- ten down, but the witnesses gave their statements upon such points as were verbally suggested by the counsel on either side. The evidence of Mr. Roberts , the accountant and book-keeper of the Company for fifty years, is to the following effect : " I think the j£7000 mentioned in the Memorial of the Hudson's Bay Company, prior to 1846, is considerably less than the amount actually received in the accounts shown." In confirmation of this testimony a state- ment of profit and loss for ten years, beginning with 1836 and ending with 1846, is extracted from the books and produced, by which it appears that the average annual profit at trading establishments within the Oregon territory, during that period, was very nearly £11,000 sterling, and the other statements fyled (See Et. of Resp. pt. 3 ^). 192 et seq.) shew no diminu- tion for four or five years afterwards ; the causes of ultimate decline not having then attained in full their devebpment and activity. It must bo observed that all the expenses for building, improvements, and repairs, were borne by the profits, and that a large amount must therefore be added for these, to the £11,000, stated as the annual money profits, in order to make up the true yearly result of the business. In presenting the evidence on this article of the claim, to the notice of the Commissioners, I have made only such extracts as bear pointedly and in a compact £cTm, upon the subject. lement and le authoritj i wars with vas not its lested and e changed ve become 3nce, posi- 5 evidence doubt its bring spe- Mial proof evidence were not ries writ- ch points le. The r of the link the ompanj, •eceived a state- 36 and Dduced, trading period, ements liminu* ieclme tj. It nents, mount Eis the lult of >f the such t)iect. 181 But it is not to be overlooked that, besides those passages, there is a body of indirect and general testimony, which in the aggregate, establishes incontestably the great extent of the trade and a pro- bable value which, although unnamed, must very far exceed that which has been specifically claimed. These passages, sometimes relate to the operations of the Company as a whole, and at others to single posts. They will be found under the following references ; Lowe, Interrogatory 38, p. 16 ; A. C. Anderson, Interrogatory 16, p. 36 ; Interrogatory 23, p. 37, Cross-Interrogatory 4, p. 41, Re-examination, Interrogatory 4, p. 49 ; Douglas, Interrogatory 6, p. 66 ; McKinlay, Interrogatory 9, p. 75, Interrogatory 19, p. 78, Cross-Interrogatory 5, p. 87 ; Mactavish, Interrogatory 4, p. 200, Interrogatory 16, p. 212, and go the full length of confirming the statements of the witnesses as to specific amounts. Indeed, the whole tenor of the evidence, shewing the extent of region covered, the number of establishments and the large body of men employed, (there being upwards of 200 at Vancouver alone) leads irresistibly to the conclusion that there is no exaggeration in de- manding for the value of their trade, and the loss suffered by its destruction, the sum specified in the Memorial. NAVIGATION OF THE COLUMBIA RIVER. The rights of the Claimants, upon which this branch of their claim is founded, are defined in specific terms by the Treaty of 1846 contained in the Second article, which is erroneously cited in the Memorial at« the Fourth. The convention of 1863, does not formally include this article, or the rights secured by it, among the matters to be submitted to the Commissioners. It mentions and recites the 3rd and 4th articles, and provides for the appointment of Commis- sioners to decide 'ipon all claims arising out of them. Whether the Commissioners will deem themselves entitled to decide upon the right of navigation under the second article as a distinct and inde- pendent branch of the claim, is for their consideration. It would without doubt be highly desirable to do so in order to terminate categorically all the questions involved in the present controversy. Whatever they may hold, however, on the subject of their jurisdic- tion, it is manifest that the Hudson's Bay Company possessed under the 2nd article of the Treaty a substantial and most valuable right — 182 and it is my duty to submit the claim founded upon it, in order either that due compensation may be awarded for its loss, or that it may be distinctly declared to be ultra vires of the Commission. In the latter case it will remain unsatisfied and untouched, as a sub- ject of future negotiation and indemnity. If the opinion of the Commissioners should be that the disposal of this right, as a distinct and independent ground of claim, lies within the limit of their powers, then it is to be so valued, as a perpetual right of navigating the Columbia ; not only for the purposes of its own trade, but as including the larger right of owning and navigating vessels for the general transportation of passengers and merchan- dize upon equal terms with citizens of the United States, and this with the security that the portages along the line of the river must be kept free and open to its use. The language of the article will admit of no narrower construction, and the enormous value of such a right will appear by reference to the testimony. But should the opinion as to juiisdiction upon this point be adverse to the Claimants, there is another view of the subject upon which no doubt can arise as to the authority of the Commissioners, and which it is convenient to state before presenting the evidence of value. Assuming the alternative that the right cannot now be dealt with as a distinct, independent ground of claim under the 2nd article of the Treaty, it was nevertheless a posaeasory right giving an enhanced value to all the other possessions of the Company ; and in settling an award for them, this great element of value must not be lost sight of. In either view of the claim there is abundance of evidence to shew how great the importance of this right is, and that it is difficult to limit its appreciation. The sum at which it is estimated in the Memorial is <£300,000 stg., equal to $1,460,000. The actual value of it is much more at the present time, and its progressive increase hereafter cannot be easily estimated. The terms of the 2d article are, that ^' From the *' point at which the 49th parallel of north latitude shall be found " to intersect the great northern branch of the Columbia River, the " navigation of the said branch shall be free and open to the " Hudson's Bay Company and to all British subjects trading with ** the same to the point where the said branch meets the main ^* stream of the Columbia, and thence down the main stream to the 183 " Ocean, with free access into or through the said river or rivers, *< it being understood that all the usual portages along the line *' thus described shall in like manner be free and open. In navi- " gating the said river or rivers, British subjects, with their goods ** and produce, shall be treated on the same footing as citizens of " the United States." — It will be observed that under this article an unrestricted right of navigation of the Columbia from the 49th parallel to the Ocean, is secured to the Company; and by a careful wording, the portages along the line of the river are made free and open. This latter consideration is of especial importance, as will be hereafter shewn in speaking of the obstructions which the Company has suffered in the exercise of its right. It is proper here to notice the references contained in this article to others besides the Hudson's Bay Company. " The navigation," says the Treaty, " shall be open to the Hudson's Bay Company and to all British subjects trading with the same." This language imports that the right reserved was for the benefit of the Company alone, it is not extended to any class of persons other than those, whose business is solely with and for this body. It, therefore, and it alone, is in a position to relinquish or transfer this right ; and if, as pro- bably will be contended, it were true that the transfer of all the posts will necessarily involve such relinquishment, the Company is entitled to compensation for it as making a part of the value of these, and of its business. I refer to the opinions of some distinguished jurists of this country upon the character and extent of this right. Mr .Webster says (see pamphlet of opinions, p. 7) : " in my opinion the reservation " of the right in the Oregon treaty to navigate the Columbia " river enures to the benefit of the Hudson's Bay Company " alone. The object was not a general grant of privilege to English <' commerce or English subjects generally." Mr. Stanton says (p. 24): " This right therefore belongs exclusively to the Hudson's " Bay Company, to be enjoyed for its benefit, by British subjects " trading with it, and like any other exclusive right may be surren- " dered or transferred to the government of the United States so as " for ever f" exclude all other claims. It is also perpetual. The right " being stipulated without limitation of time necessarily attaches for " the duration of the Company's existence," and on p. 28 following up the same subject : '' So that the Company having this perpetual 184 ' " existence at the date of the Treaty, with exclusive privileges limited " to a specified time, but not essential in any degree to the right " claimed under the Treaty, may insist on the exercise of that right " with all its inconvenience to the American government. * * * » " The Treaty right endures while the Company exists ; the Company " has perpetual existence ; by consequence it has perpetual right." Mr. Bibb says (p. 38) : " My opinion is that the article (2nd) " does not extend to British subjects generally, but is confined to " British subjects specially, who are of the Hudson's Bay Company, " their aj;;mt3, factors, and servants who are trading with the Com- '* pany by their special permission and license," and again, " the " Hudson's Bay Company may elect to release and assign to the " United States, and abandon all right of themselves to navigate and " all right to license others to trade with them by navigating the " Columbia river in so far as it depends upon that 2nd article, and " by such release the right of navigating the Columbia river will be " extinguished." Mr. Coxe's second opinion (p. 46 and following pages) treats particularly of the right of navigation, and although I do not concur with him in all his conclusions, it is an able exposi- tion of the whole subject. The evidence of the value of the right of navigation will be found in the depositions of Messrs. McKinlay, McDonald and Mac- tavish, and of Mr. Bradford, formerly Vice President of the Oregon Steam Navigation Company on the Columbia river. Mr. McKinlay says (p. 100) : " The importance of the navigation of the Columbia '' river to the business of the Company, and as a means of communi- " cation, was very great ; it was almost an absolute necessity to them, " as without it they would be compelled to transport their goods by " horses, which would have destroyed all the profits of their trade* " Without the river, in my opinion, they would not have come into " the country at all to commence their business, nor have carried it " on with any hope of success. The river being useless for navigation " without the free use of the portages, the importance of their being " always free and open must be apparent." Mr. McDonald (p. 160) says : " The river is navigated between " the White Bluff and Celilo,by steamers carrying from 100 to 200 " tons of freight, and numbers of passengers, three times a week both " waya to Wallula. Cabin passage from Wallula to Portland this -li 185 " summer, steamboats and railroads and meals included, was $20. " The rate of freight from Portland to Wallula, $32 per ton ; to " White Bluff, $55 ; in 1860, $55 per ton from the Dalles to Wal- " lula." Mr. Mactavish declines naming any specific sum in valuation of the carrying business ou the Columbia river, but gives the following answer to the 27th Int., p. 220, 221 : " It is impossible for me " to say what the value was of the business, in 1863, of carry- " ing freight and passengers on the Columbia river but it must << have amounted to a large sum, and must now be something " much heavier, the traflSc having increased greatly in conse- " quence of the discoveries of gold in the country in the interior of " the Columbia, east of the Cascades ; the number of steamers em- " ployed, together with the railroads at the Cascades and Dalles, shew '' that the business must be profitable, in order to allow an interest on " the increased amount of capital employed in carrying it on. To the " Hudson's Bay Company, the right to carry on a similar business on " the Columbia river, would be of incalculable value, and it is quite " out of my power to name a sum which I should consider an equi- " valent for their quietly giving up that right." The moat direct and important proof, however, of the magnitude and value of this carrying trade, is to be found in the deposition o^ Mr """Bradford, who has been engaged in it since the year 1850. He was formerly Vice-President, and is now a director of the Ore- gon Steam Navigation Company. According to his statement, (p. 245, 246) " the Company now owns some twenty steamboats. For " the past two years the freight from the mouth of the Willamette " river up the Columbia is a little rising 20,000 tons a year; passen- " gers passing over the route numbering about 100,000 per year. I " know the amount of receipts, but don't think it proper to disclose '* them. The capital stock is two millions of dollars, and the roads " and equipages cost in the neighborhood of $800,000. Since " the organization of the Oregon Steam Navigation Company " in 1860, the highest rates of freight per ton have been $60 " to Wallula, and $120 to Leweston, and for passengers $18 to Wal- '' lula, and $30 to Leweston, and now freight is $35 to Wallula per " ton, and $60 to Leweston, and for passengers to Wallula, I ^' think is $15, and $22 to Leweston. For passengers, $5 to !' i I 1 4 186 <* the Dalles and $15 to the Umatilla, and for freight, $l5 to the " Dalles and $30 to the Umatilla, per ton." The witness declines to disclose the amount of receipts, and he could scarcely be expected to do so, but we have data enough in his answer to enable us to form an idea of the enormous sum to which they amount. This sum, by a rough calculation, cannot be less than $2,000,000 annually. It is, I apprehend, unnecessary to say more with respect to the evidence of value. But beyond this evidence it may be suggested that the Columbia river is the great highway for communication with Idaho, Montana, and the mining establishments of that great and rapidly growing region, and that there are considerations of a .large and national character which particularly apply to this part of the Company's claim. The perpetuation of a right vested in a foreign corporation of the " free and open" navigation " on the same footing as the citi- " zens of the United States" of so great a river throughout its whole course in the Territory of the United States, is manifestly objec- tionable on broad grounds of public policy ; and the importance of obtaining a clear and unequivocal relinquishment of the right, is too obvious to require any observation upon it. The perfect understanding and strong feeling of American statesmen upon this subject are apparent in the decided tone with which the re- linquishment of it is insisted upon, as an essential condition in all the negotiations for the settlement of the Company's claims. (See Doc. Ev. F5b, F6a, F6b, pp. 440, 442, 443.) The money value of these larger considerations is of course beyond the scope of ordinary evidence ; it is nevertheless very great and must be assessed upon grounds, and from sources of knowledge understood by statesmen and publicists, and which the learning and experience of this Commission will enable it fairly to appreciate and apply. In conclusion upon this part of the claim, I would submit — That the Honorable the Commissioners have to determine, first ; whe- ther they can deal with it as one of the three distinct and in- dependent divisions of the rights of the Claimants. If they can, the amount to be awarded is clearly proved to be far beyond that specified in the Memorial as its value ; and nothing less would be a just compensation for its transfer to the United States. If m t, $15 to the ipfcs, and he a enough in lous sum to cannot be pect to the e suggested imunication that great rations of a 5 this part 3oration of IS the citi- t its whole stij objec- oaportance the right, le perfect aen upon h the re- 1 in all the s. (See ley value scope of must be iderstood perience )plj. t— That t; whe- and in- BJ can, bejond 8 would 187 tbej cannot so deal with it, then the value of the right, as inci- dental to the posts, the trade, and to the maintenance of the establishments of the Company, must be added to the value of these. In either case, the great public considerations alluded to must have their weight in aiding a conclusion as to the amount of any award which involves the relinquishment to the United States of this great and valuable right; which can, under no circumstances, be estimated at a less value than the 11,460,000 claimed for it. FOURTH PROPOSITION. The fourth proposition of the Claimants is — That the United States have not only failed to protect and maintain the Hudson's ^ Bay Company in the possessory rights secured to them by the Treaty of 1846, but by its officers and citizens acting under the authority of its government and laws, have violated and usurped these rights. The consideration of this proposition will be taken up un- der three distinct heads. 1. Dispossession by the direct acts of public functionaries. 2. Forced abandonment and losses from causes for which the United States Government is directly responsible. 8. The trespasses and aggressions of American citizens, and of persons acting under the American Settling and Donation laws. The evidence upon the first head is chiefly documentary— con- firmed and extended, however, by the testimony of several important witnesses. The first and, in so far as value is concerned, most important official act, under which the Claimants were deprived of a portion of their possesssions, is that by which Colonel Loring declared a Military Reservation at Vancouver. The instrument establishing the reservation, ''ated the 31st of October, 1850, is produced by the Claimants, and will be found under the designation A 8, (p. 823). It sets oif a tract of land in the immediate vicinity of Fort Vancouver, comprising, according to the description given in the instrument, four square nules in extent, subject, however, " to the lawful claims of the Hudson's Bay Company as guaranteed" under the Treaty of 1846. This reservation was afterwards reduced to one square mile (640 acres) which embraced a portion of the most 188 valuable land of the Company, the Fort itself, and the principal buildings (Cl^mants Ev. p. 143). It was made bj Col. Bonne- ville, in December, 1853. The documents and correspondence relating to it will be found designated in the list B, of the Doc. Ev. of the Claimants under the numbers 2, 2a, 2b, 3, 3a, ( pp. 327, 330), to which the attention of the Honorable the Commissioners is solicited. The letter B 2b, from Messrs. Ogden and Mactavish, is especially important as shewing the carefulness with which the rights of the Company were reserved before this land was finally set off. I cite the following passages : — These gentlemen raise no objection in behalf of the Company, " provided it be done on the full and express understanding that the Company waives no •rights guaranteed to it or to British subjects under the Treaty. * * * And if " hereafter, in any unexpected state of affairs in " regard to the Company's rights, it may become necessary for it " to assert its rights to the land described, or to insist upon actual " and exclusive possession of the same, and the removal of the " (military) post therefrom, of course the Company will claim their " privileges, and will regard the proposed action as only a tempo- " rary tenancy on the part of the United States, subject to the *' requirements of the Company, as its situation and future neces- " sities may compel it to act." The testimony relating to this occupation by the military antho- rities is important. Tuzo. — The first of the witnesses, Dr. Tuzo, says (p. 180 ) : " about the time I arrived at Vancouver," (1853), Colonel Bonne- " ville,the oflScer in command, reduced the military reserve from four " miles square to one, which included the fort and all the most im- " portant buildings belonging to the Company in its environs. Until " 1856 the Company enjoyed the undisturbed use ar.d possession of " their property on the reserve, but at that time the military authori- ** ties commenced and continued to call in question the hitherto " enjoyed rights of the Company, notwithstanding the frequent and " urgent protests made to Captain Ingalls, the quarter master, by the " Company's officers in charge. Some of their buildings outside the " fort were taken possession of by persons in the employ of the " various military departments. Several were burnt or otherwise ^^ destroyed while in the occupation of these persons ; the Company's r 189 ' corrall3 were made use of at first, and finally altogether removed ' by the quartermaster's department. The landing jetty on the ' river was removed, and a large warehouse and wharf erected by ' the Government on its site. The fences, and some of the head- ' boards in the Company's graveyard, were removed by some of the ' soldiers of the garrison at various times, and portions were used as ' fuel at their quarters. The graveyard became gradually almost ' obliterated. The authorities ran a fence through it, enclosing a ' portion within the parade ground, and excluding the rest. The ' orchard fence was partially removed by the military, and a road ' was made over the site of a building of the Company's which had ' been recently removed, apparently for that purpose. During all this ' period the United States Government continued the construction ' of buildings and improvements on the reserve, until, in 1859, a ' sum of between two and three hundred thousand dollars had been ' thus expended at this post." ; , ^ - Mactavish. — The evidence of Mr. Mactavish comes next in the order of the time to which it relates. He says (p. 215) : " The Com- ' pany got on very well with the miUtary for several years, say until ' 1856, when some misunderstanding arose from the garrison fence ' being run through the burying grounds of the Company ; this was ' followed by a variety of aggressions of a like nature, such asbuild- * ing a wharf and store at the beach, contrary to the expressed wish ' of the Company, m the summer of 1857. I left Vancouver in the ' summerof 1858,and was succeeded in the charge of the Company's < business there by Mr. James Allan Grahame ; that gentleman had ' much trouble with the military, who were then under the command ' of General Harney, who in the spring of 1860 told the Company's ' representative, in writing, that the Company had no rights what- ' ever to anythmg on the military reserve at Fort Vancouver, in ' consequence of which Mr. Dallas, the senior officer of the Com- ' pany on the North-West Coast, decided on withdrawing from the ' establishment and abandoning everything, which was done after ' formally protesting to General Harney with regard to his con- * duct." Mr. Wark, an officer of the Company, says (p. 189) : " While I ' was in charge of the fort in the absence of Mr. Grahame, on the 1st ' March, 1860, 1 was called upon by Captains Ingalls, Hardio, and. ^^ 1 i: I 190 « Smith, and Lieut. McKeever, who informed me that they were «* appointed by General Harney to examine the Company's fields on " the west and south-west sides of the Company's establishment, and " to report to him as to the suitableness of the land for military pur- « poses. I wrote to General Harney on the same day, protesting " against any interference with or encroachments on the Company's " rights. On the 8rd of the same month I received a reply to my *' letter On arrival of Mr. Grahame, on or " about the 25th of March, he wrote to General Harney, claiming « his protection, and encoring his protest against what had been done. " And Mr. Dallas, on his arrival, I think early in May, renewed the " protests that had been made by myself and Mr. Grahame, and " stated that, under the circumstances, he would feel compelled to " withdraw the Company's establishment from Vancouver, which " was done about the middle of June. * * * * *' On the 12th March, 1860, Government employes, under the " superintendence of Mr. Lloyd Brooke, removed the fences of the " Company's fields on the west and south-west sides of the fort. " On the 16th of same month they burned down a house that hay had « been stored in. On the 19th they removed the hospital and a " house which had been in the occupation of the volunteers in 1855 " and 1856. On the 20th, Kanaka William's house was burnt, and " on the 26th the stable and cow-house were pulled down by them." The letters referred to by Mr. Wark relating to the subject of the evidence are printed with it ; they will be found of record marked B 16a, B 17. Fort George, formerly known as Astoria, was next taken from the possession of the Company. The letter of Major Hathaway to Mr. Ogden, dated 21st June, 1850, announcing his intention to that effect, will be found under the number B 1. Mr. Mactavish (p. 205) proves that the place so passed into the possession of the United States Government for public purposes. The third official assumption of lands of the Company consists in the occupation of Fort Disappointment. By a dispatch or order dated 24th February, 1852, that place, with all the lands lying within a mile and a half of the Cape, was selected by the military authorities of the United States for public purposes, and was taken possession of accordingly. The document filed by the 191 Claimants as A9 establishes this fact. The Cape, with the 640 acres in its immediate vicinity, was then in the possession of the Com- pany. The CTidence of the possession is to be found in the testimony of Sir J. Douglas, (p. 64 and 6i)) and of Mr. Mac- tavish, (p. 205, 230,) which has already been cited in speaking of the post. Mr. Mactavish (p. 215) makes the following state- ment : " At Cape Disappointment the government of the United " States took possession of the Company's land claim there, *' without any notice being sent to the Company's representative *^ in Oregon. A light-house was first erected at the Cape, and *' after that the place has been made use of for military purposes, *' guns of heavy metal being now in position about the light-house, *' and the place in Baker's Bay, formerly occupied by the ** Company's establishment, is the site of officers' quarters ; and *^ there are also other buildings there, intended for soldiers' houses *^ and stores." The value of the post is proved for the purposes to which it has been applied by the Government, and the assump- tion of it by military authority has given to the Company a right to an adequate consideration for it, which cannot, with any shew of reason, be denied. A far more important place than the last two was the Fort of Walla Walla, abandoned by order of the agent of the United States for Indian ai&urs in 1855. The circumstances under which that valuable post, with all its improvements and the stock of merchandize, amounting together to the large sum of $68,529, was lost to the Company, have already been stated in part, in connection with the evidence of the value of the place. The documentary evidence relating to this subject will be found under the numbers^ 9, 10, 11 in list C, (p. 383-4). The first of them. No. 9, is a letter signed by Nathan Olney, Indian agent, to Mr. Sinclair an officer of the Hud- son's Bay Company, in charge of the post, containing an absolute order to leave the country without delay. The second. No. 10, is a receipt from Mr. Olney for ammunition (of the value of $1,104) taken by him and destroyed. And the third. No. 11, is a detailed account of the goods, amounting in value to $37,275.62, and im- provements valued at $30,250, abandoned and lost on leaving the post, as ordered by the letter No. 9. These three sums amount together in round numbers to the above-named sum of $68,529. j 1 11 hi 192 The specification of particulars in No. 11 is proved by the affidavit of James Sinclair (now deceased) and William Charles, a wit- ness produced by the Claimants. The facts of the order and compulsory abandonment and loss do not admit of controversy, and the affidavit, oven without the evidence of Charles, is suf- ficient proof of the account and valuation. I solicit, never- theless, the attention of the Commissioners to some passages of his testimony bearing upon the subjects. He says (p. 172) : " Mr. Nathan Olney, Indian agent, arrived at the fort on the 12th '' October, and next day he flung a quantity of ammunition into the " Columbia river, taken from the Company's establishment, for fear " of its falling into the hands of the Indians. Mr. Olney had been " appointed a special Indian agent for Walla Walla and that section " of the country, by General Palmer, the superintendent of Indian " affairs in Oregon. Mr. Olney gave a receipt to Mr. Sinclair for " this ammunition. Eventually Mr. Olney gave an order in writing " to Mr. Sinclair, to abandon the fort and property there, which Mr. " Sinclair felt compelled to obey, and we all left on the 16th Octo- " ber, arriving at Vancouver late in November. Mr. Sinclair did " not wish to abandon the fort and property there, and it was only " upon the urgent and repeated remonstrances of Mr. Olney, who " had already ordered all the white inhabitants of the Whitman Val- " ley, now known as the Walla Walla Valley, and in the vicinity <' generally down to the Dalles, that he at last consented to aban- " don the fort. " The receipt (p. 173) was made at Walla Walla on the date " therein given ; the receipt was written out by me, and signed " by Mr. Nathan Olney, the Indian agent. "Mr. Sinclair made out at Vancouver a list of the property aban- " doned at WallaWalla, consisting of furs, dry goods, provisions, &c., '• amounting to something over $37,000, and also a valuation of the " buildings of the fort, amounting to something over f 30,000, not " including in this the value of the ammunition flung in the river, " which was worth eleven hundred dollars more — which document " I signed with Mr. Sinclair. " Mr. Smclair was unfortunately killed by the Indians at the Cas- " cades, in the spring of 1856, and Mr. J. D. B. Ogilvy, who was " also at Walla Walla when the place was abandoned, is likewise 193 " dead, having been shot in British Columbia last spring, irhilo " holding some position under the Government of that Colony." After the abandonment of the post, it >vas occupied by the troops of the United States in 1856-57. This is proved by the witnesses McArthur (p. 63) and Anderson (p. 126, 128), whose evidence on the subject has been already in part quoted. Thus it is manifest not only that the Claimants were compelled by the authority of the United States to relinquish possession of the post, but that posses- sion of it was assumed by that Government, which must bo regard- ed as still holding it, and as answerable for its value, and for all that .ippertained to it at the time it was lost to the Company. These wholesale acts of expropriation great as they were, are not all, however, which form the subject of just complaint. A scries of letters exhibiting the extent and character of other aggressions, and the earnest but unavailing protests of the Company through its officers, will be found in the documentary evidence of the Claimants (p 332) under the list B, designated by numbers and letters from 4 to 19, exclusive of B 14. These letters relate to the property at Vancouver. They fully bear out the statements of the witnesses, and their tone manifests the slight regard in which the rights of the Company were held. Through the whole of them indeed, these rights are virtually ignored, and the question upon taking possession of any portion of their lands is not, whether they consent, but whether in the discretion of the oficer in authority it will suit bis convenience to do so. A shew of courtesy and forbearance is sometimes made, but this is manifestly put upon the footing of an indulgence, and entirely breaks down in the end. The first of these letters (B 4) is from Capt. (now General) Ingalls, and relates to a corral or enclosure for cattle which had been displaced, and the materials of which had been removed by him or by persons in his service. This beginning of petty aggressions had been before complained of, and the letter called out from Mr. Grahame in behalf of the Company a remonstrance, (B 4 a) in which he says, " I am sorry I cannot mmy present position do other- wise than protest most firmly, in the name of the Honorable Hudson's Bay Company, against the evident trespass upon the privileges secured to them by the treaty of June, 1846." The naxt attack upon the integrity of the right of property was \l r r i f 11 j ;ii ' 194 begun by another letter from Captain Ingalls to Mr. Mactavisb, (B 4 b), proposing to build a storehouse on the land of the Com- pany, and that Mr. Mactavish should give his consent in the form of the proposed agreement marked B 5 c. No allusion is made in the letter or proposed agreement to any form of compensation for the land, and neither in this nor in any other case does the possibility of payment for what was taken seem to have been entertained. Mr. Mactavish being '^^ this letter was answered by Mr. Grahame, who declares that he '• has come to the conclusion that the idea of gov- " emment or any other party erecting wha ryes on land claimed by, " or shifting or removing any of the buildings belonging to the ' Company, cannot be entertained." He offers nevertheless to dis- pose of the store and ground in question, for an adequate considera- tion. A further letter on this subject (B 5 d) was written by Messrs Douglas and Wark jointly, which contains a strong expres- sion of the feeling of the oflScers of the Company at that time, upon the subject of the constant aggressions and demands made under the authority of the United States Government ; and while positive- ly rejecting Captain Ingalls' proposition, contains an. offer to sell the store and grounds in question for $30,000, or to lease them at an annual rent of $1500. This letter which was addressed to Mr. Mactavish, was communicated to Captain Ingalls and in his answer (B 6), he says, " the time has arrived for me to take formal action " as to the particular site for the public store house, which I am " anxious to erect on the bank of the river," and after expressing a wish that the matter might be satisfactorily arranged, closes with declaring, " I may as well remark that in any event I shall put up a store house in a proper place." So imperious a declaration of the determination to invade the rights of the Company, was met by a firm protest (B 6 a) from Mr. Mactavish against the threatened trespass ; and this called out from captain Ingalls a very long and elaborate 1 tter (B 7) in which he undertakes to shew that the Com- pany had no right to the soil, and affirms his own right and inten- tion to take possession of and occupy any portion of the land, which he might deem useful for the public service, scouting in almost contemptuous terms, the idea that the Company were to be paid anything for the soil which it held in possession. The letter is very long, and too peculiar ia its character, and mode of deafing with I lactavish, the Com- the form made in on for the )ossibilitj ned. Mr. a.me, who a of gov- imed by, g to the ss to dis- Dnsidera- itten by 5 expres- ne, upon e under positive- sell the ^ at an to Mr. I answer tl action ch I am 3ressing !es with put up ition of met by (atened ig and eCom- '■ inten- , which almost e paid s very 5 with 195 the question, to be divided. It must all be read, in order to see the extraordinary views, under which rights guaranteed by solemn treaty between two great nations, have been regarded or rather disregarded and violated by the officials of one of them. I do not propose to enter here upon any discussion for the purpose of shew- ing the utter want of foundation for the pretensions and conclusions set forth in this letter ; they have been presented in various forma and documents, and I dare say will stil! be reproduced. The ans- wer to them all will be found in tho beginning of this argument, and in the special answer which I may have occasion to makt to that of the Counsel for the United States. It is only necessary to say here, that the agreement between Mr. Ogden and Captain Ingalls dated 1st June, 1849, marked A 6, does not in any manner or degree sustain the assumption based by the latter upon it. Mr. Mactavish, in order that no means might be left untried of prevent- ing by remonstrance the usurpation of the land of the Company, transmitted a copy of his letter of protest (B 8) to lieut. colonel Morris, then in command at Vancouver, and received from him (B 8 a) a confirnation of the acts of Captain Ingalls, and a declara- tion that the letter written to him by that gentleman had his full and entire cor currence. This of course ended the discussion, and the officers of the Hudson's Bay Company, powerless to resist, were compelled to submit to the arrogant and unjust usurpation of their property. In the following year, in January 1868, another correspondence began, relating to the erection of an arsenal on the lands of the Company. The first letter produced (B 9) is from Mr. Mactavish to Mr. Eckerson military storekeeper U. S. A. It refers to a verbal communication made to the writer, and protests against the erection of the building '^ as a direct trespass on the possessory rights jf the Hudson's Bay Company secured to them by the treaty of 1846." Mr. Eckerson's reply is short and decisive, he says " my instructions emanate from the Department of War, " through the chief of ordnance at Washington City****The Honbl. " Secretary of war has probably in pursuance of law, caused him- ^' self to be thoroughly informed as to the justice of any claims upon " the site selected for these buildings." The letters B 10, B 10a, B 11, B 12, B 12a, relate to certain i 196 ii i i: 'i. lii, 1,1 (:■ buildings of the Company which were pulled down by order of tii8 Quarter Master General. To the remonstrance and protest made by Mr. Grahame, on behalf of the Company, against this act of trespass, Captain Ingalls replied (B 11) by alleging that either Mr. Grahame must have been erroneously informed, " or else was deter- " mined to add one more to the list of protests, with which that " Company has annoyed us this past year on rhe most trifling " pretexts." He goes onto question whether the buildings referred to ever have been used by t'ae Company, and denies that they belong- ed to it. Mr. Grahame's answer (B 12a) to this uncourteous and bold denial of right, contains the following expressions : " as far as " our title to the building in question is concerned, I need scarcely " say that did wc not consider it ours I should not have entered " any protest against its destruction. If Captain Ingalls will refer " to his vouchers for the year 1850, he will find that the same build- ** ing was rented by himself of the Hudson's Bay Company, during " the latter half of that year, as an office for the paymaster, Major " Reynolds." This answer is so explicit, and exposes so completely the recklessness with which assertions were made in denial of the most incontestable rights of the Company, that I abstain from any further observation upon it. In February 1859 it again became Mr. Grahame's duty to protest against another trespass (B 13a). The answer of Cap- tain Ingalls (B 13b) is in the same spirit of arrogant denial of the Company's rights. He takes it; for granted, that Mr. Grahame regards the protest as an oft repeated formula of no par- ticular force or propriety, and adds : " But if you can possibly still entertain doubts as to the rights of the Military Post here to lands &c., I will ask you to refer to the published opinion of the Judge of the Court held at this place in 1850. The Judge there decided that the United States Military authorities were legally in possession." The letter of Mr. Grahame to Lieut. Wheeler (B 15), relating to the erection of a theatre on the Company's land, and that gentle- man's answer (B 15 a) present an additional instance of aggres- sion, to which the Company were obliged to submit. The last correspondence of a similar character, took place between Mr. Wark and General Harney. The immediate occasion of Mr. Wark's letter (B 16) was the removal of one of the enclosures of bj order of and protest ist this act of it either Mr. 56 was deter- which that most trifling s referred to they belong- arteous and " as far as ed scarcely ive entered Is will refer same build- any, during ster, Major completely nial of the in from any 3 duty to >r of Cap- ant denial that Mr. ' of no par- ssibly still lands &c., Jge of the cided that •ssession." relating to at gontle- >f aggres- e between )n of Mr. osures of 197 the Company, and the declared intention of tearing down a house tenanted by one of its servants. The answers to this letter (B 16 a and B 17) are printed in Mr. Wark's deposition, and have already been noticed. His reply (B 17 a) is a firm and spirited remon- strance against the trespass, and his letter is followed by one from Mr. Grahame to General Harney (B 18 a), which rebukes so directly and forcibly the unjustifiable course pursued by the United States oflScers, that I present it here for perusal : Sir, — " I was much surprised to find on my arrival here on the " 25th ult., that extensive depredations had been committed by your " orders on the lands and tenements of the Hudson's Bay Company at "this place, and that further aggressions were intended, and have " since been put in execution." **In the name of the Company, I hereby enter my solemn protest " against this course, claim your protection as the highest military " authority of the United States at this place, and request in common *< courtesy for the information of the Company and the British Gov- " emment, that a copy be furnished me of your authority to dispose " BO summarily of the rights of the Hudson's Bay Company under the " Treaty concluded in 1846, between Great Britain and the United " States of America." This just and spirited assertion of right was displeasing to Gene- ral Harney, who answered through Captain Pleasanton (B 18 a), in- structing him to state that no claim of the " Hudson's Bay Com- *' pany to any lands within the limits of the reserve at Fort Van- " couver is recognized, " and that " any privileges permitted " that establishment on the military reservation at Fort Vancouver, " since the 30th day of May, 1859, have been conceded by the court- " esy and forbearance ofthe Commanding General." And further to communicate, " that the style of Mr. Grahame's correspondence " with the General was considered improper and objectionable and " unless changed would receive no attention in future." With this letter the climax was completed, and it is curious to follow the degrees of assumption, from the year 1849, when posses- sion was first taken of the land of the Company at Vancouver by the military authorities, and this last communication. The first step was an occupation reserving the possessory rights of the Hud- son's Bay (/ompany, and the buildings were leased from that body "1 !i 11 r 198 at stipulated rents. Then followed the assertion of a right to take land required for any purpose, which the officer in command might declare to be useful to the public service, including the right to remove enclosures, and to pull down buildings ; all without com- pensation. Next came the formal and elaborate denial that the Company had any right whatever in the soil ; soon after a similar denial as to a building, which the officer making the denial had formerly rented from the Company for the United States. And after a series of high handed acts of aggression and trespass, ac- companied by derisive and contemptuous answers to the remon- strances made in behalf of the Company, we come at last to this letter from General Harney, which not only denies all right, and places the Company in the position of a waiter upon his tolerance, but makes it a ground of offence that the Company's officer in charge should presume to assert its right, or to complain of the 'depredations and outrages which it suffered, and had so long suf- fered at the hands of the military authorities of the United States. As a matter of course, after this position so offensively assumed, some decided step became necessary on the part of tho Hudson's Bay Company ; and, accordingly, Mr. Dallas, President of the Council of the Company, by a letter (B 19) dated 10th May, 1860, after citing the offensive declaration contained in General Harney's letter, announced that the Company had but one course to pursue, which was to withdraw entirely from the territory. He re-affirmed, notwithstanding General Harney's indignation, all that had been written by Messrs. Wark and Grahame against the infringe- ment of the treaty of 1846, but in stronger terms, and cast the responsibility upon the government of the United States ; holding it liable, as it undoubtedly was and is, for all these unjustifiable acts of its officers, who must be presumed to have been acting under the special instructions of that government. The following pas- sage from this letter of Mr, Dallas sums up so well the sense of the injurious and overbearing treatment to which the Company had been subjected that I insert it here. After detailing the extraor- dinary course adopted by General Harney, he says : — " Such are the circumstances, coupled with other aggressions of *' a similar nature, which compel the Hudson's Bay Company to with- * draw from a land which they occupied by treaty right, and which 199 " they reclaimed from the wilderness and from the savage ; and ** against the hardships and famine of the one and the deadly hostility ** of the other, they have, on more than one well-known occasion, pre- " served the lives and the footing in the country of the American " Settlers." It has been my design to give enough of this correspondence to shew its essential bearing upon the subject, and that it exposes better than anything else can the spirit and mode in which rights held under the solemn sanction of a treaty, were dealt with by men clothed with authority from the United States government. A full perusal of the letters will render comment unnecessary, for they afford a picture of high handed aggression on the one hand, and of hopeless and helpless remonstrance on the other, 'hich no comment could strengthen. The consequence — whether inte- >d or not, the United States government alone can say — was to drive the Com- pany from the country. As announced by Mr. Dallas in his letter, they withdrew in 1860, abandoning their property at Vancouver, then only a remnant of the extensive and valuable possessions gua- ranteed to them by the treaty. 2. The second head under which the subjects of the fourth proposi- tion are to be considered, comprehends the forced abandonments and the losses consequent upon the acts of the United States. The most important of these was the abandonment of the post at "Walla Walla, which as has been alredy seen, was compelled by the order of the Indian agent, in consequence of the war with the Ya- kima and other Indians. Two other posts were necessarily abandoned for the same cause, without the intervention of any special order, but equally in consequence of the position in which the Company was placed, by the hostilities between the government and the abo- rigines ; these were Forts Hall and Bois^. The evidence is similar ^n relation to both. The witness Charles was in charge of Bois^ in 1855. After mentioning the expedition of Major Haller, of the United States army, who captured and punished several Indians for the massacre of emigrants in the neighbourhood of Bois^, he says (p. 172) : " The Major returned to the Dalles in the autumn " (1855) leaving the Indians in a very excited condition, so much ** so that on departure of the troops, I could not safely remain, so i ! 1 ' 2(0 " I abandoned the place with my three men and got safely to Walla " Walla." And (p. 174) " after the close of the Indian war, that " country was so unsafe that the Company could not, if they wish- ** ed, re-possess themselves of the post." Mr. McDonald says, (p. 132) of Fort Hall, that it was aban- doned on account of Indian hostilities with the white population in 1856. It was left because it could not be communicated with in the usual way, which was by way of Walla Walla, and Bois6 from Vancouver. Two of the express men of the Company had been killed between Fort Hall and Walla Walla, and the place was abandoned by orders from Chief Factor Mactavish, whose testimony (p. 206) confirms that of these two witnesses. Mr. McKinlay states (p. 96) that the Company after 1846, could not carry on their trade with the usual profits in consequence of the war between the whites and the Indians. Dr. Tolmie, in his examination as a witness fo. the Respondents (Pt. 1, p. 101-2), after stating the causes which compelled the Company to abandon Walla Walla, Fort Hall and Boisd, says (p. 102-3) : " The country was in a very disturbed state after the " war ; the value of Walla Walla was greatly diminished as a dis- " tributing point, and as a place for the purchase of horses. Forts " Hall and Bois^ could not be reached owing to the hostile condi- ** tion of the Snake Indians ; neither of these posts * * * " could be thoroughly outfitted owing to the existence of an order '* from general Clarke, prohibiting the introduction or sale, at any " of the interior posts, of ammunition, which is essentially necessary " to Indian trade ; moreover the Company's post at Walla Walla was " occupied by United States troops, long after 1856, and when " abandoned by them, it was taken as a donation claim by an " American citizen named Van Syckle." It is to be observed that so long as the Country was under the exclusive control of the Hudson's Bay Company, no war arose witE the natives, but with the introduction of the new sovereignty and of a new population, these wars became frequent and dangerous ; and the remote establishments of the Company, which up to that time had existed in perfect safety and maintained a kindly and beneficial intercourse with the Indians, became in consequence un- tenable. The evil of this change fell most heavily on the Company aj hi b tB 1:^ L^- 201 at Walla Walla, Bois^ and Fort Hall ; and the more so as after having once been driven from these places, the resumption of them became useless even if it had been possible. Their relations \^ith the Indians had been broken off. The advantages which these re- lations gave them, could never be re-established ; and no other ad- vantage could have been expected from regaining a barren posses- sion of these posts, at all commensurate with the expenses and dif- ficulties which they must have encountered in the attempt. Mean- ivhile a population, hostile to the interests and existence of the Com- pany had increased, and the prospect became more certain, of being at no distant day driven from the country. Under these circum- stances, an attempt to resume their property was manifestly not advisable. For as nothing could have been gained by its success, so no right could be lost by declining to make it. If the property was theirs when they were forced to abandon it by the urgent ne- cessities of a state of war and immediate peril, it still remains theirs, and the United States Government cannot in law or common reason have assumed it, or now retain it, either by its officers, or by its citizens claiming under donation or other laws, without giving for it a fair compensation. The claim is as good now as it was at the day of the abandonment, and the transfer of the right of property can only be demanded upon the terms of the treaty, that is to say, for an adea.uate money consideration now to be assessed. Before passmg to another branch of this subject of aggressions, I must expose, in addition to these acts of the Government leading to to direct and immediate expropriation and loss, certain other acts of interference by its functionaries, scarcely less mischievous and in- jurious to the rights of the Company. These were sometimes by official papers, but more generally by expressions verbally or in letters, declaring that the rights claimed had never existed, or that they had ceased to exist, and setting them entirely at naught ; thus encouraging persons already too ill-disposed, to trespasses and settle- ment upon the land of the Company, in open defiance of its opposition and warnings. The evidence of all this will be found in several of the documents fyled, and also in many passages of the testimony. I shall first direct attention to these documents, and then to the testimony. The first of them, *n order of time, is an extract from instructions given to Dr. Dart, Indian Agent, and published in the Report of )l I I i 202 tlie Commissioner of Indian affairs, in 1850. This extract, which is fyled under the designation A 10, (p. 825) is significant. It dis- closes the determination of the Government of the United States that the Company, notwithstanding the guarantees of the Treaty of 1846, should not be permitted to continue its trade in the ceded territory. " Underno circumstances," says that Government, speaking through its Commissioner, " should the Company be permitted to have tra- " ding establishments within the limits of the territory ; and if any " such establishments now exist, they should be promptly proceeded <' with, in accordance with the requirements of the non-intercourse " law." To what particular law the instructions allude, I am not aware ; for I can find none which could properly be applied to the case, and for the purpose contemplated. If any such law existed at the time of the treaty, or was afterwards enacted, it could not restrain the rights secured by that instrument. The treaty consti- tuted the higher law, and if by it a right was guaranteed to a foreign corporation to hold property, and to carry on trade, within the territory of the United States, no municipal law could take away those rights. This, I understand to be so undoubted a rule of public law, that it will scarcely be contested. If it be, I shall be prepared to sustain it, both by argument and authority. From the fact that no direct action was taken upon these instructions for " promptly proceeding " in the manner indicated in them, it is probable that new light was received on the subject, and that it was found impracticable to do so. The Company, therefore, was left ostensibly in the possession of its establishments and its trade, but the process of expropriation by official assumption, and of trespasses by American citizens, seems to have been adopted or permitted, for the purpose of accomplishing, more slowly, but not less completely or less certainly, the desired object of driving this foreign and powerful corporation out of the country without remuneration. No other solu- tion than this can be applied to the whole course of the policy pur- sued by the Government and people of the United States towards it. Another official document (C 2, p. 368) is so remarkable as to re- quire a very special notice. It is a letter from Mr. Stevena to Mr. Ogden, dated 20th December, 1853. Mr. Stevens was then Governor of Washington Territory, and Superintendent of Indian affairs. The date of the letter shews it to be connected HL 203 with an elaborate, but most one-sided and unfair report upon the value of the property of the Hudson's Bay Company, which that gentleman got up for a purpose, under the instructions of Mr Secretary Marcy. The report was a piece of unsound special pleading, and the letter corresponds in character with it. The positions assumed in both are — First, that the rights and privileges held by the Company, under the authority of the British Govern- ment and Parliament, were worth nothing after the Treaty of 1846 and but for the special stipulation regarding its interests, its posses- sion would have been but a mere trespass. Second, that the rights acquired by mere possession vested no interest in the soil, but a right which existed and was held by mere occupancy, and was lost the moment such occupancy was abandoned. Third, that there is " nothing in the Treaty which secures to the Hudson's Bay Company the right to trade with the Indians ;" and, as a consequence of the latter assumption, Governor Stevens adds, that " this practice," that is, the trade with the Indians, " will instantly cease ;" graciously ac- cording, however, to the Company " six months from the Ist January to settle their affairs." A duplicate of this letter was sent to Dr. Tolmie, who was in charge of the P. S. A. Co.'s establishment at Nisqually. The portions of it which relate to the property and rights of that Company will be noticed in the argument upon its claim. This letter of Governor Stevens, coupled with its counterpart the report alluded to, is a clear declaration of the policy which I have above stated to be that of the United States Government, and the people of Washington Territory. His bold and sweeping nega- tion of any right under the Treaty worth securing or holding, is sustained by such little show of reason, that a formal answer can scarcely be deemed necessary. I refer, however, to my statement of the rights of the Claimants, and of the grounds on which they rest, as covering the whole controversy. And for a precise and con- clusive refutation of the particular pretensions set up by the United States Government through Mr. Stevens, I call the attention of the Commissioners to Sir George Simpson's answer (C 2b, p. 372), dated at Lachine, 22nd March, 1854. This carefully-written paper meets fairly and fully all the points taken by Governor Stevens, and shews how utterly untenable they are. I make no extracts from 204 Ml !! «| it, because it must be read and considered as a whole ; and I re- spectfully refer the Commissioners to it for that purpose. It is to be observed, that this second threat in 1853, of stopping the trade of the Company with the Indians, like that of 1850 found in the instructions to Dr. Dart, was not followed by any direct official action. However strong the disposition for it nay have been, it was no donbt found upon reflection to be a measure too ex- treme and unjustifiable to be ventured upon. There is, it is true, another letter from Governor Stevens (C 8), dated 9th Jan- uary, 1854, in answer to Dr. Tolmie's protest (C 7 a) against the views expressed in his former one, in which he (Stevens) re-affirms those views, especially as regards the right of trade, but nothing more substantial seems to have followed. The opinion of Governor Stevens, which was well known through- out the territory, to be thus hostile to the claims of the Company, must have strengthened greatly the universal tendency to disregard its rights, and to commit all forms of usurpation and spoliation upon its possessions. That such was, in fact, the case is shewn by the testimony. Added to this, were the expressions to the same effect contained in the letters of the military officers, already referred to, and tho verbal declarations which those in authority were in the habit of making, in relation to the rights of the Company. — The testimony of Mr. McKinlay sufficiently establishes this. Speak- ing (p. 96) of the trespassers (jumpers as he styles them) upon the land of the Company, he says : " I know they were encouraged by some of the military officers of the United States." And (p. 99), he answers on cross-examination: "Major Reynolds, and Captain " Ingalls, were the officers that I heard justify 'jumping.' I have "conversed with several others, but do not remember their names " particularly. -!« * * I have heard Ingalls talk about it fre- " quently to myself and others, and Reynolds justified it in a speech "in Court, where he was acting as a lawyer. ^This was between " 1848 and 1859." Mr. Mactavish (p. 214), also mentions the influence of Govemo r Stevens' enunciation of his opinions, and it cannot be questioned, that the denial or depreciation of the rights of the Company, was a popular and general topic with men in the pub- lic service, as well as with private citizens. The weighty influence of the opinions of the former upon the latter, thus supporting them 205 in their hostility to the Company, and in the acts of spoliation con- sequent upon that feeling, must, manifestly, have had a most mis- chievous and injurious tendency upon its rights and interests. I need not, however, dwell longer upon these points which I leave to the consideration of the Honorable the Commissioners ; and now pass to another. Previous to the date of Governor Stevens' letter, great and con- tinued obstructions had been thrown in the way of the Company in the navigation of the Columbia River. The clearness of their right to the free navigation of that River, for such purposes as might suit the interests and convenience of the Company, one would think could scarcely be doubted, after a perusal of the second and third articles of the Treaty. I have already endeavoured to shew that such right admits of no reasonable question. Nevertheless, the active zeal of the officers of Customs at Fort George or Astoria, enabled them to read the articles by the light of new rules of interpretation of International Law, and we find accordingly, that so early as the year 1850, difficulties were raised, bonds required, and restrictions imposed upon the right of free navigation, which were in direct and palpable violation of the spirit and letter of the Treaty. The documents which show this will be found fyled in the list C, (p. 896) marked 12, 12a, 13, 14, and 15, including its enclosure, and one under the designation D 2, (p. 404). All these letters refer chiefly to the "Prince of Wales" Schooner which belonged to the Hudson's Bay Company, and while they exhibit the particular unlawful vexa- tions of which that vessel was the subject, they also betray the spirit in which all questions involving the interests of the Company were dealt with by the officials of the United States. The letter D 2 from Mr. Ogden to Sir George Simpson, affords a clue to this particular transaction, and a sample of the motives and course of conduct with which the servants of the Company were constantly obliged to contend. I commend it to the special perusal of the Commissioners. It is not necessary to recite here the contents of the letters referred to. There are, however, in one of them, certain expressions which I wish to bring more particularly under notice. It is the letter from Mr. Webster, then Secretary of State, to Mr. Crampton, British Minister at Washmgton, inclosed in the letter C 15. It acknowledges a *' communication relative to the case of the British Schooner "Prince I'' i 2Cfi '« of Wales'* and other vexatious interfei'ences on the part of the *< American authorities with the trading pursuits of the Hudson's " Bay Company in Oregon," and after stating the complaint made says that " tlie Collector, mimpprehendlnij the lawy gave the ordeic to which exception had been taken," referring to the document C 14 sifmed by the Collector and Deputy-Collector. The letter then alludes to certain instructions which are stated to have been fiven, and concludes with these words: " These instructions, if is " presumed, will effectually prevent in future, any improper inter- " ference on the part of the officers of the United States in the " trading pursuits of the Hudson's Bay Company." This document is of consequence, as indicating the view taken, officially, by a states- man and jurist — perhaps the greatest that America has produced — of the important right of navigation secured by the Treaty ; and it administers in unqualified terms a merited rebuke to the subor- dinates who had taken upon themselves to violate it. In conclusion upon this subject, I would now refer in general terms to the fact that the portages on the Columbia, which were indispens- ably necessary to the connection of the navigable portions of the River, and without the free use of which th:! transportation of the goods of the Company to the Upper Post'i was impracticable (Mac- tavish p. 210 211), have been taken possession of by chartered Railroad Companies holding their rights under Local Statutes, or Statutes of the United States (*). The grants to these Companies • 1. An Act to incorporate the Cascade Railroad Company. Statutes of Washington Territory, 1858, page 37. ■ Amended by an Act of December 20th, 1859. LawB ofWashington Territory, 1859-60, page 121. 2. An Act to incorporate the Columbia Transportation Company of the Ter- ritory of Washington , Session Laws of Washington Territory, 1861-62, page 110. 3. An Act to incorporate the Washington Railroad Company. , Statutes of Washington Territory, 1864-65, page 108. 4. An Act to incorporate the Middle Cascades Portage Company, ^ Statutes of Washington Territory, 1864-65, page 115. Amended by an Act December 9tb, 1865. > - •■' Laws of Washington Territory, 1865-66, page 178. . ■ 5. An Act to incorporate the Klickitat Portage Company. Statutes of Washington Territory, 1865-66, page 172. 6. An Act to grant the right of way to the Cascade Railroad Company through a Military Reserve in Washington Territory. Unito d States Statutes 1865-66, page 31. 207 are virtually monoiwHcs, and it is no longer possible for the Hud- son's Bay Company, to make the same use of the portages which it formerly did, and without which the right of navigation is com- paratively worthless. The evidence of Mr. Mactavish as cited bears strongly on this point ; and that of McKinlay and McDonald, (p. 102, 161), indicates the importance of the portages. The fact of the obstruction is shewn by two at least of the witnesses for the Respondents. One of these, Ainsworth (Pt. l,p. 1), shews the great value of the traffic, and consequently of the right of navigation of the Columbia ; and proves unwillingly that the free and unobstruc- ted use of the portages by the Hudson's Bay Company has been infringed. Cain, also, whose deposition has been noticed in a former page, proves on Cross-examination (p. 246 to 250) most reluctantly, but sufficiently, the obstruction and indeed prevention of the free uso of the portages ; it being apparent from his statements, that as a matter of fact, all the lands upon which the landings and portages were, have been granted by the United States, to Rail- road Companies or to private parties in whose possession they now are. The inevitable conclusion is, that the United States have given away to third parties, rights and privileges of great value, in a man- ner which has deprived the Hudson's Bay Company of the benefit and use of the rights secured to them by the treaty, of, at least, equal value. "- • ' ? - •. The prosecution of these details, which is unavoidably wearisome, brings me to the 3rd head of the 4th proposition. Under this head I propose to present a portion of the evidence of trespass and spolia- tion by American citizens assuming to act linder Land and Dona- tion I^ws, to which they were encouraged, as has already been shewn, by the declarations and acts of public functionaries, civil and military. So much of the land of the Company was taken, and by such a multitude of persons, that only the larger and more aggravated cases of aggression can be noticed ; for the others, reference must be had to the details ^ven in the testimony. The be^nning of these acts of trespass, it is important to note, I' I :! ^ i S * 1 i I ! mi 208 was shortly after the date of the Treaty. Up to that time the possession of the Company had been free and unchallenged (Mac- tavish 201, 216). In 1849, there were twelve or fourteen settlers according to the statement of the witness Crate (p. 114, 115). Mr. Lowe states that he frequently visited Vancouver after 1850, and in general terms that he found a great many settlers claiming and occupying the lands of the Company, which as it appeared to him had ceased to carry on fanning operations, most of the land having been squatted on ; and the same had taken place with the stock ranges. Mr. A. C. Anderson (p. 39), proves that in 1851 when he re- turned to Vancouver, after an absence of several years, he found a portion of the land formerly enclosed and cultivated by the Com- pany, occupied and built upon by a man of the name of Short, and (p. 45) he says much property at Vancouver " was wantonly des- " troyed, and it was only within the immediate limits of the Fort " that it was found possible to make restorations to prevent decay. " I say within the immediate limits of the fort, because outside there " was no protection in fact against the outrages of unprincipled per- *' sons around, who, either for selfish purposes, or from wanton mo- <* tives inimical to the Company, constantly sought to destroy or de- " teriorate the value oi the property. Of this I have given an *' instance already, in describing the destruction or removal of the " fence which had been built for confining the wanderings of the " herds of cattle. (See p. 41). The large herd of cattle which had " formerly roamed upon the pastures had been, some removed to ^< positions of greater security, others branded and stolen by squatters , " some wantonly shot, and the i mainder driven into the woods, " where, from want of the ordinary herding, ilir.j gradually be- " came wild." The testimony of Mr. McKinlay (p. 82) shews fully the extent of these usurpations of the land of the Company. Referring to the years 1849 and 1850, he declares, " The whole of the Lower plain <* was occuped by others ; the 1st, 2nd, 3rd, and 4th, I think, were «( all occuped by others. The Fort Plain, with the exception of the << fort and its immediate outbuildings, the orchards and two or three " hundred acres of enclosed lands, was in the occupation of settiers << and the military who were camped and erecting buildings on the time the d (Mac- Q settlers L5). Mr. 850, and ming and d to him the land with the a he re- le found ;he Com- lort, and only des- the Fort it decay, ide there pled per- nton mo- 'oy or de- given an 'al of the 5s of the hich had Qoved to quatters, le woods, aaily be- 6 extent ng to the rer plain nk, were on of the or three P setliers ^oathe a 209 " land back of the fort. On the Mill Plain there were some settlers " on the farther end. The Company had land there under cultivation ; '' I think there was as much fenced as in 1846, but the fences were '* not in as good condition. The cattle of the Company were nearly '' all destroyed or driven off. There were very few cattle and some *' sheep, the cattle range was very much interfered with ; and not '' much left but woods." But the fullest and most particular account of these trespasses is to be found in the deposition of Crate. He says (p. 108), " When " I left Fort Vancouver in 1843, there were no persons claiming any '* part of the Company's land ; when I returned in 1849, there were '' a few settlers on the lands, claiming under the Donation Land law. " I returned in November, 1849. * * * After I arrived there, " and up to 1853, the great body of the settlers came in. They took about all the Company's land up to the military reserve, which I •' think was about one mile square ; some of their claims would come '' within the mile of front on the river bank. The military reserve " included the Company's fort, and almost all the buildings in the " immediate vicinity. Most of these men who took possession of '* claims upon the Tompany's land. I believe, were Americans, and •' some of them wero foreign bom. From their statements, and from " their living upou vhe claims, I believe them to have been claiming " to hold the land u ider the Donation Law of the United States. I " know that I accompanied somo of them to the Land OflBce to take " steps to secure tht ir claims under the Donation Law ; others I saw " at Oregon C'ty, vaiting to prove up under the Land Laws." lie foMows chi? jtitement with a careful specification of the tracts . * en by diffvirent piTSons whom he names (p. 109 and two follow- ing pages) and adds . " There were other settlers who occupied " all the small pieces of land suitable for settlement not included in " the larger plains I have mentioned, wherever water could be " found. In taking up all these claims more or less woodlands were " included, either at the choice of the settbr, or to make up the " amount of land he claimed. The whole of the Company's land claim " was substantially taken up by settlers, except some places in the '"' woods ; each of these claimants took all of the Company's buildings, " fences and improvements which happened to be on the particular ** piece of land appropriated by him, changing the fences whenever T !' 'if I iM 210 " jt suited their convenience. As to particular acts, I recollect some " time about 1856, when the saw mill was not running, but was in " my charge, J. E. Taylor, in my absence, took possession of the " mill, and set it running without sawing, in order to make the mill " run easy, and spoiled an iron spur wheel twenty feet in diameter. " I ordered him off several times ; he told me the Company had no " right to it, as it was on his claim, and he had a right to every thing *' on his claim. The officer in charge of the Company got out an " injunction for some purpose, but Taylor remained in possession and " sold it to one Love, who was in possession when I left the country." " A town was laid out on the Short claim directly below the fort, " some time between 1850 and 1S53. Before I left, the town had '^ grown to quite a considerable size." " The Company sowed a good deal of land above and below the " fort with timothy grass, it was several years before it came to " anything. Above the fort, Ryan and Nye had this land, and below " Mrs. Short, Duchenay, and Mrs. Mellick, Petrain, Proulx, and " Laframboise ; these people cut large quantities of timothy hay on " these lands, and sold in the summer for twenty-five dollars per " ton, and in the winter at fifty dollars per ton ; one winter, when " snow was deep on the ground, it could not be bought for less than " one hundred dollars per ton." On the same page (111) it will be found that the County Com- missioners of the county of Clarke sold town lots on that portion of the land of the Company occupied by Short. Other parts of this testimony of Crate to be found on the pages 112, 114, 115, 116, have an important bearing upon the same subject. Dr. Tuzo's evidence is only less particular than Crate's which it fully confirms. It will be found on page 182 in answer tc Int. 7. I do not quote it here, as after giving the statements of the latter, it is unnecessary to do more than to request the attention of ty -i Commissioners to it. I also refer to the testin ;ry of M^. Mactavish on pp. 201, 203 and 220. He says (p. 220), '- 1 8ho'i]<^ " estimate the loss sustained by the Company, in coa3C']'i«nce of the " occupation of their lands by squatters and others, commencing with " the year 1850, owing to which the Company's cattle ah disappeared " and other damages were incurred, at from $40,000 to $50,000 " annually." lect some ut was in >n of the the mill diameter, ly had no erj thing )t out an ssion and ountry." the fort, ;own had er, when a 211 In addition to these witnesses, reference may be made to general Ingalls' answer to the 10 Int. of his first examination (p. 3), in which he says ; " In 1849, the Company was in occupation of en- " closures" &c., described in former answer. "They were ^I'adualiy " absorbed by increasmg settlements, until at last the occupation " was reduced very nearly to the stockade, when the Company re- " tired." The evidence above adverted to, all applies to the lands at Van- couver, but it was not with reference to these alone that the Com- pany had cause of complaint. Mr. McDonald shews that a similar course was pursued at Colville. Speaking of that post, he says : " There is a direct and indirect interference. The direct interfer- " ence is taking possession of the White Mud farm, and the taking " possession by the County of our wagon roads to our mill, and over ** our portage. The indirect interference is, that fences and farms are established where our herds used to graze freely, and no per- " son turning them away, and all sorts of causes not easily described. *■' The whole of the White Mud plains and mowing grounds are now ^' «.laiaTied by settlers there. There are two or three settlers on the ' Fort Plain that have not yet interfered with us much. On account ^' of :;he loss of the White Mud plain, we cannot well breed our own * i ^ef, ?.s usual ; and our spring and summer pasture grounds are " eaf^v. up by the stock of the rest of the settlers, and we cannot *' vmter our horses there with safety at all. In consequence of all " this the loss is very considerable, and I will not now estimate the " amount." I have deemed it my duty to make these extracts and references in order to exhibit the extent of the aggressions complained of, and the apparent predetermination with which they were made. They yere, in fact, not the mere isolated acts of individuals, but a move- ment sustained by the whole population, and which no eflfort of re- sistance on the part of the Company could by any possibility arrest. What with the open usurpations and hostile opinion of the mili- tary authorities, backed by public documents and the official corres- pondence of the civil functionaries, and the strong current of popu- lar feeling everywhere manifested in consequence, by the press, by speeches in Court and at public meetings, and taking a practical form in the trespasses of a multitude of persons, it is evident that 212 if I • 21 any resort to the Courts of Law for protection and redress, would have ended in defeat and derision. If verdicts could have been obtained, which was not in fact possible, judgments could not have been enforced. Some few attempts werr mude by the Company in that direction, but they proved abor'ive, and only made matters worse. The will and necessities of a rude pioneer population wera stronger than respect .c ice or the restraints of law. In fact, judges and juries, sheriffb i sheriffs' oflScers, made part of a com- munity saturated to the very core with feelings of the bitterest ani- mosity towards this foreign corporation, and fully resolved that it should not hold its posts in the country. It would have been an act of folly, and of ruinously expensive folly, for the Company to have brought suits against the army of trespassers, by which their rights were thus invaded, w'th the countenance and support of all which constituted the moral and physical strength of the country. This condition of things was notorious, and is apparent in the whole history of the Company from the treaty of 1846 up to its being finally driven from Vancouver in 1860. As to evidence on the subject, it is neither rare nor uncertain. Much is found in the admissions even of the witnesses for the Unit- ed States. Of the Claimants witnesses there are several who speak directly to this point. Mr. Lowe, (p. 22) speaking of the effect of the trespasses upon the farming and pasturage land says : " There appeared to be no " help for this state of things, as I believe the Law Courts of the " country declined to interfere in any way, considering it probably " a matter to be arranged between the Governments of Great Bri- " tain and the United States." Mr. A. C. Anderson on being asked (p. 48), why there were no prosecutions in his time (from 1851 to 1854) at Fort Vancou- ver, answers : " From the single reason, as I conceive, that it * would have been bootless to institute them." Mr. McKiNLAY on being asked (p. 96), why the Company did not prevent their old servants and others from jumping their lands at Vancouver, replies : " My own impression is, that they could not " prevent the jumping ; soon after the treaty they began to jump, <^ and were soon too numerous for the Company to go to law with '< besides, most of them, being irresponsible, might be turned out one 213 " day, and be back the next ; further than this, I know they were " encouraged by some of the military oflScers of the United States. " It would have been useless for the Company to have gone to law.'' Mr. Crate (pp. Ill and 116), speaks of an injunction against Taylor, who had taken possession of the Company's mill, but adds, that Taylor " remained in possession notwithstanding, and sold to " another man.'* Mr. Mactavish makes the following statement on the subject of prosecutions (p. 216) : " During the term of the Provisional Gov- " emment of Oregon, proceedings were instituted in the local Courts " against Amos Short, who, soon after the treaty of 1846, squatted " on the Company's lands immediately below Fort Vancouver. It was " only in the autumn of 1850, however, that the first Court was held " in Clarke County, in which Fort Vancouver is situated, under the " Territorial Government of Oregon,* by which time there were a " great many squatters on the Company's lands, and whose opposi- '^ tion to the Company was such, that it was impossible to have got " an impartial verdict from a jury in a case where the Company's " land was concerned ; it was therefore not considered advisable to " try such matters in the local Courts, so that in reality there was no " protection for the Company in these Courts, although the Company '^ paid all taxes, and did all they could to support law and order in " the country in every possible manner. The Company did every- '^ thing that could prudently be done to maintain their rights in that " country, and were placed in a very difficult position for the want " of a proper definition of their rights under the treaty. Some pro- " ceedings were also taken by me against Taylor and Ryan, before " mentioned, as squatters, but with little or no eiFect." The last witness to whose statements I shall particularly advert in this connection, is Mr. Farrar. As a lawyer of high reputation for ability, with large experience and extensive practice in Oregon » he is signally well qualified to pronounce an opinion. To Int. 14, (p. 253) as to what feeling existed among the people concerning the Company, and whether that feeling would affect their chance in the courts, he answers : " Citizens of that country were very gener- " ally pretty hostile to the claims of the Hudson's Bay Company, and '^ manifested a very decided disposition to maintain possession of the ' public lands they had settled upon as against any claim or action 214 |i i * i i 1 I ' i " that might be taken by the Hudson's Bay Company. I don't think <•' that the Hudson's Bay Company could have obtained a verdict in *• any court in Clarke County, sustaining their claim or right to any " portion of the lands in that country, from 1853 to the autumn of " 1862, unless it may have been to the four or five acres enclosed in " their stockade at Fort Vancouver, and not to that since the last day "of May, 1859." The strong and pointed eviience on the subject by Fitzhugh in the P. S. A. Company's case (p. 143) is appUcable also in this ; and all these opinions find a full justification in the extraordinary charge of Chief Justice Hewitt, referred to, sup. p. 153. It may, perhaps, be dwelling unnecessarily upon the subject, but before leaving it I desire to point attention to the expressions contain- ed in some of the letters fyled, shewing what was done at the time, and what were the views of the officers of the Company upon the diffi- culties that surrounded thorn. From a letter by Messrs. Ogden and Mactavish to Colonel Bonneville (B 2 a) dated 3rd January, 1854, we find the Sheriff of the County, Mr. Willis, figuring as one of the trespassers on the Company's land, and that he was warned off, but without effect, and the military authority was appealed to for protection, whether successfully or not does not appear. Mr. Grahame, in a letter (D 8) dated 5th August, 1859, after stating that certain publications in the newspapers " had ignited a fire of filibusterism," and that parties had laid claim to the lands of the Company, and notified him of their intention to put up fences upon it, adds : " I have threatened them with prosecution, and so *- far they have done nothing, but will, I fear, soon commence " operating, as the public sentiment is in their favor, and a trial *' by jury would give them a verdict against us." I pursue this topic no further, but in order to shew that the spirit of the press in Washington Territory has lost nothing of the acrimony which light- ed this " fire of filibusterism " in 1859, and, indeed, long before, I refer to the local newspapers fyled, of record, and already advert- ed to. They contain a lively and true expression of the public feeling of the territory towards the claimants. The fact then of these enormous and persistent trespasses by American citizens, under the countenance and encouragement of the authorities and laws of the United States, and the fact that no 215 protection or redress could be obtained from the Courts, are, I take it, fully established. ^ > Tlie matters falling within the terms of the 4th proposition have now been presented, imperfectly I fear, yet with some degree of com^ eteness. It only remains to add, before proceeding to the next proposition, the statements of the witnesses which show the loss and damages resulting to the Company from being deprived, by the several forms of aggression particularized, of the use and enjoyment of its property. These statements have already been given in some instances when it was difficult to separate them from the context. I now^ propose, however, to present them together here in a more compact form. ■ * Mr. McKiNLAY (p. 84), estimates the loss of profits on agri- cultural produce at Vancouver, from the time the Company was - compelled to give up farming there, which began to be the case within two or three years after the treaty, at $540,000 annually. Tuzo estimates it from $40,000 to $50,000 annually (p. 82) ; and he states ashi3basisinpart,that 2,000 acres ofvery fine land had been enclosed, and sown with timothy grass by the Company, upon which there could have been annually realized $20 an acre from the hay alone. These tracts were all taken possession of by the military, and by several tro nassers whom he names, and who became wealthy from the sale of tlie produce of this land. ^ ■ Mr. Mactavisii says (p. 220), I should estimate the loss sus- tained by the Company, in consequence of the occupation of their lands around Fort Vancouver and neighbourhood, by squatters and others, commencing Avith the year 1850, owing to which the Com- pany's cattle all disappeared, and other damages were incurred at from forty to fifty thov.sand dollars annually. For the forced aban- donment of Fort Vancouverin 1860, by order of General Harney, I should estimate the loss to the Company at one hundred thousand dol- lars. And (p. 233) in answer to a Cross-Int. he explains that he refers to the losses of business, and not including the lands and buildings. These statements relate to Vancouver only. The evidence relating to the loss of business at Walla Walla, Boisd and Fort Hall has already been noticed. It shows there an estimated annual loss at these three posts of from $20,000 to $25,000. These sums added to the estimate of loss at Vancouver make up a total very much ex- 1 . 216 i^ii 11' I needing the X 50,000 sterling, specified in the memorial ; and which affords a guide to the value of property capable of producing so great an annual return. It has been already stated that the Hudson's Bay Company, in consequence of the course pursued towards it by the American Goyemment and people, was compelled to abandon the country, except Golville and the outposts of Okanagan, Kootenais and Flat- heads dependent upon it. It did so in May, 1860, leaving the remnants of its possessions and property at the mercy of those who had compelled this final step. It will be proper to call attention to the correspondence which relates to this subject, in order to shew the necessity for the step and the strong terms in which the repre- sentatives of the Government of Great Britain remonstrated with that of the United States upon it. The letters between General Harney and the oflficers of the Company have already been given. The others Wi 1 be found in List D under the numbers 5, 10, 12, 13, 14, 15, 16, 17 (pp 405. 410. 412 et. 389.) These all merit a careful perusal, as shewing the condition to which the Company was reduced, and the treatment of its interests by the United States authorities. Two of them, however, are of sufficient importance to be more particularly brought under notice in this place. The first of these is number 13 (p. 413), a letter from Lord Lyons to Mr. Cass, dated 25th May, 1860. In this letter occur some remarkable passages, shewing to how peril- ous a point the course pursued by the United States Government in violation of the treaty, and the complaints of the Company liad driven the relations of the two countries. Lord Lyons says : " It is my duty in obedience to the orders of Her Majesty's Govern- ment, once more to call your attention to the question of the " rights secured to the Hudson's Bay and Puget Sound Companies, " by the treaty signed at Washington on the 15th of June, 1846. " It is to be feared that this question is becoming more criti- " cal from day to day. I had on the 14th ultimo the honor to in- " form the Government of the United States, verbally, that in the " opinion of Her Majesty's Government the question was assun ;.g " a serious character. Her Majesty's Government have not, how- "ever, as yet received from the United States any assurances " calculated to remove that impression. On the other hand, the (( (( y. 217 id which icing so )anj, in lerican ^ountry, id Flat- |ing the >se who ition to \o shew *' accounts which from time to time reach Her Majesty's Govern- " ment, appear to shew a settled determination on the part of the " officers of the United States in Oregon, to ignore the rights of *' the Hudson's Biy Company, and to disregard the stipulations of " the treaty of 1846." After stating that steps were evidently in contemplation, on the part of the authorities in Washington Territory, which would amount to a confiscation of the property of the Hudson's Bay Company, he goes on to say : " A spoUation so unjust and unpro- " voked, one in which the rights of a public Company and the " stipulations of a Treaty would be alike disregarded, would meet " with the steady and determined resistance of Her Majesty's " Government," adding, " the case admits of no delay ;" and fur- ther, " the accompanying papers shew beyond a doubt the charac- " ter of the measure in contemplation ; and I am accordingly " instructed by Her Majesty's principal Secretary of State for ^' Foreign Affairs to call upon the Government of the United States " to arrest the proceedings of their authorities in Oregon Territory, *• and to protect the rights of the Hudson's Bay Company, as. " secured by Treaty of 184*^. The British Government desire ti " see the stipulations of the Treaty of 1846 faithfully carried into " effect, and they would object equally to a direct or an indirect " violation of its provisions." The act of spoliation alluded to was the appointment of the Surveyor-General of Washington Territory to decide upon the land claims of the P. S. A. Co., and this after he had officially declared that the claim was wholly unfounded. (See Doc. Ev. P. S. A. Co., G. 4, 4 a, 4 b, 4 c, 4 d, p. 181-2-3- 4, and Doc. Ev. of U. S., B 1, p. 303-4). The tone of this despatch indicates how strong the provocation must have been to have called it forth. And it was fortunate for the Claimants that the British Government was at last thus aroused to a sense of the crying injustice to which they were subjected, and that a crisis had arrived at which regard for national honor re- quired a direct and stem interference for the protection of the rights guaranteed by the Treaty. The effect of this interference was salutary, and to it, without doubt, we are indebted for the Convention of 1863. I do not deem it necessary to make any fur- ther quotations from these letters. They speak for themselves. 1 218 «« I But' I would particularly mention one of them, that of Governor Berens to Lord John llussell, dated 9th February, 1861 (D. 17). It contains a. detail of the acts of the United States authorities, and shews that while professions were made of a disposition to observe the Treaty, orders were in fact given which were in palpable and gross violation of its stipulations. I leave the whole of this corres- pondence to the careful consideration of the Commissioners, and, without further remarks upon it, I pass to the 5th proposition. FIFTH PROPOSITION. The terms of this proposition are : That in consequence of the failure to perform the obligations assumed under the Treaty, and of the aggressions above complained of, the United States are liable to the Hudson's Bay Company for the highest value of the rights and possessions secured by it, at any time betvi een its date and the production of the present claim ; and are also liable for all losses and damages suffered by the Hudson's Bay Company in consequence. This proposition is little more than an obvious legal inference from the facts which have already been presented. If the evidence be true that, at the date of the Treaty, the Company was in posses- sion of the tracts of land, the rights of trade, the right of naviga- tion, and other incidental rights particularized in the Memorial, and that they have been deprived of all these by the action of the authorities of the United States, civil and military, and of American citizens acting under Donation or other laws, with the countenance and encouragement of these authorities ; if, I say, the evidence of all this be true, there is small room to doubt that the United States are liable for the value of all these rights, and for whatever loss and damage the Company has sufifered from being deprived of them. For the acts of their officers, and the losses immediately consequent on their wars, the liability is so manifest that I shall add nothing more upon the subject. The only contro- versy which can possibly be raised is as to the extent to which such liability would attach to the Government for the aggressions of pri- vate trespassers. Upon this question, however, there should exist really as little doubt as upon the other. These trespasses were made under the Donation and Settling Laws of the United States. 219 lovornor p. 17). f^s, and >bserve 3lo and [corres- fs, and, According to the provisions of these laws, the claims, as they were technically called, of the trespassers were entered in a public office and acquhred the character of a public record. The men making them were not thus acting as mere unauthorized squatters but rested upon a pretended basis of legal authority. In most instances patents were granted to them for the lands which they had thus reserved (see on map II, sections marked P in red) and they were sustained by the opinions and the acts of the officers of the United States army, and of the Civil Departments, not only in Washington Territory, but also at the seat of Government. The proceedings and influences tending to the expropriation and destruction of the interests of the Hudson's Bay Company, had thus in some instances the direct sanction of the Government of the United States, and in all others its acquiescence and tacit approval ; without which the present controversy never would have arisen. Suppose, for an instant, that the Government, true to the obliga- tions assumed by it under the Treaty, had abstained from all acts of expropriation and aggression at Fort Vancouver and elsewhere, and had caused its officers to maintain the Company in its Treaty rights instead of attacking them by official correspondence and ac- tual usurpation ; had stopped the Public Surveyor from entering upon the lands in its possession, until boundaries could be defined and agreed upon, and prevented by special instructions the regis- tering of settlers' claims upon such lands; had discountenfMice.i and repressed the spirit of hostility and consequent spoliation in its first manifestations among the people ; and had, in short, from the beginning and continuously shewn a determination, that the rights of the Hudson's Bay Company should be respected. If such a just and honorable course, consistent with the dignity and self respect of a great nation, had been pursued by the Government of the United States, how different would have been the position of the Claimants. It is likely that within a few years after the Treaty, their posses- sions would have been transferred to that Government for a just compensation, settled on a basis satisfactory to both parties. If not, their property would have been kept up, increasing in value with the increase of wealth in the country, to which it would have continued to contribute. Their agriculture and trade operations would have changed with changing circumstances, and, instead of being unproductive, would by adaptation to the new order of things *li 220 ! tl »1 have become more and more profitAblc. Above this, confidence would have been felt in the title which the Company could have givcTi, and its lands could have been disposed of, as favorable op- portunities offered, at prices exceeding the highest estimate which has been put upon them. But instead of the course supposed, the actual one pursued was, as we have seen, widely different ; and now, in pursuance of the same course, the present claim is met by a vigorous and prolonged effort to create out of the spirit of hostility and self-interest which pervades the whole population, a mass of evidence to shew that the amount claimed far exceeds the value of the lost rights. That is to say, after their property has been depreciated, their trade des- troyed, their rights denied or frittered away, and the claimants .compelled to abandon the country and all they possessed in it, the party iesponsible for all this, seeks to make it a ground for a dimi- nution of liabiUty. Having wilfully reduced the thing to a state in which they pretend that it is valueless or nearly so, the Govern ment of the United States would now acquire it for the no value to which it has been thus reduced. But I have no misgivings with respect to the ground I have assumed upon the subject of all these aggressions. No legal subtlety, no ingenuity of argument, no form of sophism, can so pervert the plain facts of the case — the broad common sense view which it presents, as to free the United States Oovernment from full responsibility in this matter. I now, by way of resumption, lay before the Commissioners a statement of what I consider to be the result of the evidence upon the several specified heads of demand, following the order in wWch they have been treated. ^ ' 1. Aggregate value of Vancouver and the other Posts $1,289,958 :2. Value of the trade not less than 950,000 3. Right of navigating i Columbia river not less than 1,460,000 4. Loss and damage from being deprived of their Posts not less than 200,000 FORMER NEaOTIATIONS AND OFFICIAL STATKMENTf . It will be convenient here, in connection with this head of the j)resent discussion, and after having submitted the foregoing statement of the aggressions suffered by the claimants, to notice certain negotiations, which have been brought up by the docu 7 ifidencc Id have ible op- whicli 221 tnentary evidence of the llespondcnts, for the sale of the propoity and rights of the Hudson's Bay and Paget Sound Af^ricultural Companies. Such negotiations are shown to have taken place at two separate times, one in 1849, when proposals were made to purchase and sell for 1850,000 ; and another in 1860, when the Companies, through Lord Lyons, seem to have consented to accept 8500,000 for all their claims. I propose to give the history of these offers, and of another, which is carefully omitted from the evidence for the defence, sliowin" the circumstances under which they were made, and then to assif^n specific reasons why they have no application, and can have no effect upon the present claim. It has been already stated ir- a for- mer part of this argument, that the Hudson's Bay Company, very shortly after the Treaty of 1?4G, perceived the strongly hostile feeling which prevailed against it as a wealthy and powerful for- eign Corporation, and became apprehensive that little was to be expected from the protection of the American Government, or from the forbearance of its citizens. It therefore felt that its tenure in the country was insecure, and anxiously caught at any hope of" obtaining some compensation, however inadequate, for a description of property which could not fail to prove a constant cause of jealousy and ill will, likely to load to difficulties between the tw«> countries, and of which it might, eventually, be deprived without any compensation at all. The whole statement on the pre- ceding pages shows how strong a justification there was for this fear ; and the declarations of the chief officers of the Company, to< be found in the evidence already noticed, and that contained iii the documentary evidence, under letter F. exhibit its influence. It appears in the letter from Sir John Pelly, written to Sir George Simpson in 1848 (Claimants' Doc. Ev. p. 403), and also in his letter produced by the Respondents (Doc. Ev. p. 243). And Mr. Ogden, writing in 1851, to Sir George Simpson (Doc. Ev. F 4, p. 486), says with more intensity: — " I am not very sanguine " of our receiving a cent, and my opinion is, the American Govcrn- " ment are anxious to drive us out of the country, and will resort " to all measures, so far as placing every obstacle in our way, to " disgust us." This apprehension affords the true motive for the i i 222 consents given by the Companies at different times to an excessive and unreasonable reduction of their rightful claims. The first trace we find of any direct proposition for the purchase of the rights of the Companies, seems to have proceeded from Mr. Webster, in a paper drawn up by him and fyled by the claimants under the designation F 5. It is in his b-^.ndwriting, and is evidently the first rough sketch of a proposed agreement between the United States Government and the Hudson's Bay and Puget Sound Companies. The terms expressed in it are that the latter shall transfer to the United States all their property, " including the right to navigate the Columbia " Kiver and its tributaries," with the exception of such inclosed grounds and mills as were not wanted by the United States for naval or milicary purposes, for $700,000. This, in fact, comes up to the $1,000,000 mentioned in Sir George Simpson's letter; the property excepted, viz., the then enclosed grounds and mills, being on a moderate estimate, worth far more than $300,000. That draft appears to have been the basis of the convention of which a copy is produced by the Respondents (Doc. E", A 3, p. 244) ; the copy in the possession of the Hudson's Bay Cou'pany having been sent by Mr. Clayton, then Secretary of State, to Sir George Simp- son, as appears by the note of the former annexfid to it, fyled by the Claimants (F 5a, p. 438). By this latter draft, a further reduc- tion was submitted to by the claimants, in the vain hope that these successive sacrifices would lead to a speedy settlement, and the whole property exclusive of the stock was put at $850,000. I can only account for the draft in the handwriting of Mr. Webster and the note from Mr. Clayton to Sir George Simpson, which accom- panied the second draft, by supposing that the propositions con- tained in them did not emanate from the Companies, but on the contrary, proceeded from OflBlcers of the American Government, which when accepted, that Government refused to carry out. Next came another negotiation, in 1852, between Mr. Webster and Mr. Crampton, the British Minister at \^ashington, which reached the stage of a formal agreement drawn out by Mr. Web- ster, for the purchase and sale of all the property and rights of the Hudson's Bay and Puget Sound Companies, for $1,000,000. It was probably based upon the expected information mentioned by 223 (xcesaive mrchase rom Mr. laimants and is reement ludson's ed in it ates all olumbia inclosed ;ates for iomes up ter ; the Is, being That which a [4 J ; the ing been ^e Simp- Pjrled by ir reduc- lat these and the . lean 3ter and accom- ms con- on the rnment, ut. iVebster I, which r. Web- » of the }0,000. >ned bj him in his letter (Doc. Ev. F 6), and which must have been furnished by Judge Nelson and others about that time. This agreement was frustrated by the death of the great jurist and statesman in November of that year. The Doc. Ev. F 6 a to g, (p. 441 to 447) consisting of the a'greement,with several letters from Mr. Crampton, and ono from Mr. Fletcher Webster, are sufficiently explanatory of what then occurred. Following that negotiation, the statement fyled by the Respondents (Doc. Ev. A 4, p. 250), which had been the basis of the agreement, was furnished by Sir George Simpson to Mr. Everett, the successor of Mr. Webster, as Secre- tary of State, and it was then expected that the convention between the latter and Mr. Crampton would have been perfected arid car- ried out in the terms agreed upon. In this, however, as in all the other expeccations of a settlement of their claims upon any terms whatever, the Companies were doomed to disappointment, and the next step j.n the history of these wearisome and fruitless negotia- tions, was the appointment of Mr. Stevens, and his one sided and preposterous report and letter, assuming that the Hudson's Bay Company had no right whatever in the soil, no right of trade with the Indians, that all such rights as it might have, would finally cease in 1859, and that the value at the date of the report of the possessory rights of the two Companies under the treaty, did not exceed $300,000. The false reasoning and misstatements upon which that report is based, have already been exposed, and a just op'i.ion of it is expres- Bed by Lord Napier in his despatoli to Mr. Ct .■> (Claimants Doc. Ev. F 14, p. 456), which has not yet been noticed. Using the measured language of diplomacy, he nevertheless characterizes the valuation of Mr. Stevens, as " ex parte , hasty, partial, obviously " susceptible of dispute, and likely to wear a very different aspect " in the eyes of others and even in his own, if subjected to careful " and dispassionate scrutiny." I solicit a careful perucal of this despatch, as it deals in a straight-forward and satisfactory manner not only with the report, but also with the general controversy between the Companies and the American Government. The report seems to have been got up in order to found upon it an applicatioTi to Congress, for a grant of money to that amount to buy these rights. The Companies protested at once against the 224 inadequacy of the sum. (Doc. Ev. F 15, p. 459, G 6, p. 185.) Nevertheless, the government of the day made a show of endea- vouring to obtain the passage of am act for the appropriation, and failed of success. Nothing was obtained although it was recom- mended by the President in two successive messages, one in 1864 aud the other in 1855. (See House Jour. 2nd Sess., o3rd Con- gress, p. 16. Ex. Doc. 1st Sess. 34th Congress, 1855 ; and Mr. Slarcy's Letter to Sir George Simpson, (Doc. Ev. F 9, p. 450.) This negative result was, in eflfect, a declaration by the nation through its legislature, that it would not pay even the inconsidera- ble amount which one of its own servants, chosen for the special purpose of depreciating the property, had declared to be its value. It involved a refusal to make any appropriation for the purchase of the rights of the Companies, and appeared to indicate an inten- tion to confiscate them. It was so received by the Claimants, and aroused their fears to such a degree, that they would, without doubt, have been willing to accept any offer which would have afforded a chance of securing the merest fragment of their property from total wreck. When the question came to be, as it then was in their eyes, whether they should insist upon a just compensation, and thereby incur the almost certain loss of the whole, or should accept any amount, however trivial, which might be obtainable, it is manifest that the latter was the wiser course. It, however, then, and for years afterwards, appeared that nothing whatever would be obtained. The correspondence after the messages, until 1860, when the offer through Lord Lyons was made, six months after the Claimants had been driven from the country, shows their desponden- cy and hopelessness on the subject. I refer to letters to be found in the Claimants Doc. Ev. (F 6 f, p. 446, F 10, p. 452, F 12, p. 454) for an expression of the distrust and fears which existed in the minds, not only of those connected with the Company, but of others of high position, who were independent of it. Mr. Crampton, in his letter to Sir George Simpson, 12th March, 1854, (F 6 f, p. 445,) after stating a conversation with Mr. Marcy , says : " All this, " looks like a di^dgn in some quart r to take the Hudson's Bay ♦* Company's property instead of buying it^ or at least to depreciate " it first, and then to buy it cheap." Again, in a second letter, (F 6 g, p. 446,) he says: "He (Mr. Marcy) declines to 225 ** direct the Governor of Washington territory to delay puttin* ** into force the notice to the Hudson's Bay Company to cease " trading with the Indians," (this was the notice given by Mr. " Stevens) " and contests that the Company have any right so to " trade under the treaty of 1846." Mr. Lumley, representing the British Minister at Washington, writes on the 14th August, 1856, to Sir George Simpson, (F 10, p. 451) : " The U. S. Government seems inclined to drive a hard •' bargain with you, and to cheapen the purchase to the utmost by " depreciating its value," and again in a letter to Mr. Hammond, secretary to Lord Clarendon, 26th October, 1856, he says: "I " should be sorry to state anything which might appear like an " improper or unjustifiable reflection on the U. S. Government, and " yet, when it is considered how little sincere desire has been shown " by them to carry into execution the provisions of the 3rd and 4th " articles of the treaty, so important to the interests of the British "Companies, and when it is seen that insto > 1 of taking the pro- " perty at the very reasonable price for wlin h it is offered to the " United States, attempts are made to depreciate its value, it isim- " possible not to fear that the conduct of the government is actuated " h/ the determination not to pay for that which they hope to obtain *' without piirehasey Mr. Shepherd, the Governor of the Hudson's Bay Company, referring to the above letter, expresses the same fear in these words : " I have no doubt that Mr. Lumley is quite correct in " his surmise that the U. S. Government have been procrastinat- ' ing in the hope that we shall he forced to accept any terms which " they may he pleased to dictate.''^ And Mr. Berens, Deputy Governor, writing on the 11th February, 1859, to Sir George Simpson, (F 17, p. 461,) says : " / «m sorry that you should take " such a gloomy view of our prospects in the negotiations respect- *' ing our possessory rights, hut I must confess that it rather con- *^ firms the idea lohich I endeavor to refute.'''' Many more expressions of this kind might be produced, as few letters passed between the oflScers of the Companies, or were written by them to the govern- ment authorities, which do not contain something to the same effect. In all the interval of this correspondence the aggressions and violations of right complained of were going on, and the claimants 226 were being crowded, step by step, out of their most valuable pos- sessions. Then began the notable project of getting rid of the Puget Sound Company's rights by appointing the Surveyor General of Washington Territory to adjudicate upon them ; this oflScer having already declared officially in his report (P.S.A. Co.'s Doc. Ev. G 4, p. 181.) that that Company had no rights. That was the scheme characterized by Lord Lyons as a confiscation, and so sharply rebuked by him in his letter to Mr. Cass (Claimants' Doc. Ev. p. 413.) It reached the form of an Act of Congress (G 4 d, p. 184.) and the spoliation contemplated by it was only stopped by the firm remonstrances of the British Government. It has already been seen that after a long and bitter correspondence, portions of which have been put on record, the Hudson's Bay Com- pany were finally compelled in 1860 to abandon the country ; the commanding officer at Vancouver having officially declared, under the instructions of Secretary Floyd, that it had no longer any right there and was suffered to remain only upon his tolerance. The Claimants, thus driven to the wall by the United States authorities, «vnd feeling that there could be no redress unless the British Government should in their behalf resort to the ultima ratio of nations, became, of course, utterly helpless. On the one hand was confiscation, on the other, the unwillingness of the British Government to be forced to extremities, and its anxiety to settle the question at whatever cost to the only parties really interested in it. The Company itself was powerless between these . two great interests ; the negotiation was therefore placed in the hands of the British Minister at Washington, and the Claimants had the alternative either of peaceably acquiescing in the proposals of the government, or of losing all. It was under such circumstances, six months after they were driven from the country, and in the hope of obtaining an immediate settlement, that a reluctant consent was given by them to accept the $500,000, mentioned in Lord Lyons' letter of the 10th December 1860. (U. S. Doc. Ev. p. 282 et seq.) These circumstances and the antecedent facts show that the consent was given under a constraint as stringent as any which con- stitutes duress in law. If instead of $500,000, Lord John Russell had suggested $100,000 or $10,000, the Claimants would have been equally compelled to submit to the sacrifice. 227 ible pog. H of the Surveyor 5m; this [A. Co.'a Is. That iscation, faimants* 388 (G 4 stopped )ndence, ay Corn- try ; the I, under ;er any lerance. States less the ultima the one of the anxiety really n these . in the its had sals of ances, > hope it was iyons' seq.) t the icon- issell been It is obvious then, that these several negotiations and couaenti cannot be received as exhibiting any appreciation by the com- panies of the true value of their possessory rights. And the fact must not be lost sight of, that the only apparent appreciation before fyling the present claim, is the estimate of $2,330,000, furnished by Sir George Simpson (U. S. Doc. Ev. p. 250). This was ex- clusive of the right of navigating the Columbia river, wliioh from the special mention made of it in all the negotiations, and in the correspondence, was manifestly regarded both by the American Government and the Company as of great value, and cannot be estimated at less than $1,500,000 more. Of that estimate, hastily given, Sir George says in his letter to Mr. Marcy, 14th Oct. 1853, (Doc. Ev. F 7, p. 447.) " It can scarcely be considered an ap- " proximation to the value of such property and ' possessory rights ' " which on a closer examination I find to be of much greater extent " than 1 was then aware of;^' and he adds, " but the Hudson's ** Bay and Puget Sound Companies being anxious that the long " pending negotiation for the sale in question should be brought to *' a close, have empowered me to conclude the same for the consi- " deration originally proposed, say one million of dollars." And the further observation must now be made, that the increase in the value of land since the time of that estimate, renders it worthless as a criterion of value subsequently. This offer which accompanied the estimate, to accept one million, w?*8 made under the influences already adverted to ; which were strengthened by the consideration expressed in the memorandum, (p. 249) that the position of the Companies might become a pow- erful source of strife injurious to the peace and good order of the country, and eventually involve national interests also. It was a great sacrifice in order to terminate a troublesome and perilous question, and consented to in the expectation of immediate settle- ment. But let it be carefully noted, that all this occurred fifteen years ago. Had the offer been accepted, and the one million then paid, that sum would at the present day fall little short of the wiiole amount of the actual claim. But that offer was not accepted, nor was any other, and after a long and barren controversy, this Commission has been constituted to adjudge, not upon any former offer or appreciation, but upon the f £E 228 true value of the treaty rights ; and that value is asserted and has been proved to be far more than any estimate then made. It is be- fore this tribunal that the Claimants have found themselves, for the first time, in a position to act upon a footing of equal advantage with the Respondents and to claim their rights at their true value. They could not do so while lying at the mercy of the only party -which could acquire them, and which seemed resolved to take them without return of compensation, great or small. I cannot believe that after this statement, every particular of which is sustained by evidence, any argument will be necessary to induce a conclusion that the negotiations and offers can have no in- fluence upon the judgment now sought. The reasons for such con- clusion, which are apparent upon the face of the statement and rest upon the nature of the duty imposed upon the Commission by the treaty of 1863, may be summed up in a few words. 1. The offers were a proffer of compromise for the purpose of ter- minating a controversy in which all the advantages of power were on the side of the United States. They were made under the pres- sure of urgent and well grounded apprehensions of inevitable and total loss, and therefore, in themselves, are not evidence of value. 2. They were accompanied or preceded by an estimate and declaration, shewing that, in fact, they did not approach in amount the value of the rights in question. 3. They were never accepted, and therefore became in law and reason extinct in all their effects, as fully as if they had never been made. 4. The treaty of 1863, adopted an entirely new mode of dealing with the controversy, and all previous negotiations and offers with the consequences and presumptions arising from them were waived and deleted by the reference to the tribunal created under it. This Honorable Commission, therefore, has no authority to revive these, or, in any degree, to base its judgment upon them. Its definite office is to assess an adequate money consideration, not upon an erroneous and inadequate estimate made fifteen years ago, but according to the true value of the rights as established by the evi- dence before it, independently of all antecedents. T propose in this connection also to notice briefly a part of the Documentary Evidence of the Respondents which has not yet 229 ind has [t is be- for the [■antage value. party |e them been adverted to. A portion of this evidence has been produced with the object of shewing that the rights of the Hudson's Bay Company have been denied or questioned both in England and Canjvda by persons of high official position. That this should have occurred in the history of a great and powerful corporation, holdmg a vast tract of country and exercising a virtual mono- poly in it, is not to be wondered at ; such a body is always unpo- pular and is as likely to be so in England as elsewhere. From time to time party cries havo been raised against it, and in 1857-8 there was so strong a feeling that it resulted in a parliamentary enquiry. In Canada, also, the same disfavor exists, quickened by a desire among a class of its public men to take possession of the country held by the Hudson's Bay Company and to drive a hard bargain by depreciating as much as possible its value. These dispo- sitions, however, cannot be received as exponents or authority in set- tling a question of the value of legal rights, and are noticed rather from an unwillingness to pass them in silence than from any appre- hension of their effect upon the minds of the Commissioners. The documents referred to, consist first, of five despatches from Sir E. Bulwer Lytton,then Secretary of State for the colonies (U. S. Doc. Ev. A 12, p. 286 and seq.) ; a few words, will suffice to dispose of them. They were written to Sir James Douglas, Governor of Vancouver's Island, in reference to British Colum- bia, then about to be erected into a colony. The occasion and par- ticular subject of these letters seems to have been the question of a right to exclude all persons from British Columbia and the naviga- tion of Eraser's River unless they held tl^'. Company's license. Sir James Douglas had for many years pidviously been a chief officer of the Hudson's Bay Company, and held a large pecuniary interest in it. The people of the new colony well knowing this and sharing in the common sentiment against the Company, were likely to look upon his acts and perhaps his appointment to the office with distrust — and the Secretary for the colonies thought it necessary under the circumstances to enter his caveat and to declare strongly against any favor being shewn toward so obnoxious a body. In doing so he undertook to express certain unwarranted opinions as to its gen- eral rights. These opinions, founded upon imperfect information,a» indeed the despatches themselves shew, could not determine or in any 230 manner affect the legal rights of the Company, nor can thoj have an J weight in influencing the judgment of the Commission. That they are wholly erroneous and did great injustice to the Hudson's Bay Company is prored, by the course of the British Goverment toward that Company, of which an account has been given in the preceding pages ; by the whole body of correspondence relating to the rights of the Company which have never been questioned by any other British minister ; and by the action of the Government in relation to the land claimed by the Hudson's Bay Company in Bri- tish Columbia and Vancouver's Island. I must be permitted to add, that the whole tone and temper of these despatches is mani- festly unfriendly and unfair to a body which had unquestionably rendered important services to the Crown of Great Britain ; and the protest by Governor Douglas (U. S. Doc. Ev. part 3, p. 391) against the injustice of Sir E. B. Lytton's despatches, is as strong as the relative positions of the two men would admit. Of the reports, one by Mr. Brown and the other by the Canadian delegates (U. S. Doc. Ev. 1 and 2), I have nothing to say, ex- cept that they were written by politicians seeking a certain object and adopting such views and representations as would be most likely to attain it at the cheapest rate. Such is the tendency of the re- ference in the former report (p. 347), and in the latter (p. 350), to the lands held by the Company in British Columbia, and to the de- clared willingness of the United States Government to pay 11,- 000,000 in satisfaction of the present claim. The other documents of the Respondents will be left vathout re- mark until the application and use for which they are intended shall have been explained by the Counsel for the United States. GENERAL CONSIDERATIONS. 1 1 In addition to all the special grounds upon which the present cljum rests and which have now been exposed, there are considera- tions of a broader character which are entitled to weight in dealing fairly with the questions submitted to the Commission. These con- siderations, or many of them, have been stated in general terms in the Memorial. And in order not to repeat unnecessarily, I would 1 1 'I J have That ^dson's Irinent (in the ting to led by lent in |n Bri- ted to imani- •nably and ♦^1 p. is as 231 respectfully request the attention of the Honorable the Commis- sioners to that statement, which is in the following terms : " In addition to the special statements hereinbefore contained, " the Hudson's Bay Company submit, that throughout a long series " of years, they expended large sums of money, and devoted much " labor and time in efforts to bring the native population into such " a condition, that safe and profitable relations in regard to trade " and general intercourse could be established with them. The " exploration of the country, the expenditure for labor, and of the " parties engaged, the opening of roads, the strong force required " as a protection against the Indians, their conciliation, brought " about, sometimes by a resort to forcible measures, but chiefly by " liberal dealing, eflFected a great change in the condition of the " country, rendering it fit for immediate settlement. These were '* substantial benefits to the Government and people of the United " States, under whose Sovereignty this Territory fell, and could not " have been secured without a very large outlay. It is, of course, " impossible to give any minute details of expenditures of this class, " and of the advantages which the United States have deri' ed from " them, but the justice of extending to the Hudson's Ba^ Com- " pany liberal compensation, founded on these considerationj, is too " apparent to allow of any reasonable hesitation in admitting it." I shall leave this statement without comment or enlargement, trust- ing to the evidence to supply the absence of any more lengthened or elaborate exposition. There are several witnesses who testify strongly on this subject. The evidence of Sir James Douglas and that of Mr. Mactavish, are given in language which renders any addition to it unnecessary, and it is not to be forgotten, that these witnesses are the only living ones, whose position, Ir ng services and intelligence enable them to speak fully on the subject. Mr. Ogden and others whose tes- timony would have been equally valuable, are long since dead. Governor Douglas says (p. 66): " The Hudson's Bay Company were " certainly put to a very great expense in exploring the country " in making roads, in establishing an effective control over the Indian " tribes, and bringing them into friendly relations with the whites, " and thus rendering the country habitable for settlers, — substantial ** benefits, which, judging from the precedents afforded by the settle- il 282 " ment of the Territory of the United States of America and of Her " Majesty's Colonie8,are never attained without great sacrifice of life, " and a large outlay of money. A reference to the Hudson's Bay *' Company's Books will prove that besides the general kindness " extended to the first American settlers who travelled by the over- " land route to Oregon, material aid was largely dispensed to them " in clothing, agricultural implements, and seed-grain, without which " they could hardly have succeeded in establishing the country. If my memory serves me right, the value of the supplies furnished to " these early settlers amounted to a very large sum, and I am inform- " ed that a large portion of it has never been repaid." Mr. Mactavish, in his answer to Int. 16, pp. 212, 213, gives the following clear and ample statements. " At the different esta- " blishments, particularly at Fort Vancouver, there were roads made '' at considerable outlay, and the road between Cowlitz and the Mis- " qually country was first opened by the Companj' . The various por- ^' tages on the Columbia River were also made and cleared at some " expense. With respect to the Indians, much Tfas done to civilize " them, and at the date of the treaty generally, the Indians in Oregon " were favourably disposed towards the whites,who were then settling " in the country, entirely owing to the influence the Company's peo- " pie had acquired over them. Every assistance was given by the " late Dr. McLaughlin, and the Company's oflScers generally, " to the early settlers in Oregon. All this was at an immense outlay " to the Company, but what the amount of that outlay was I can " hardly say ; indeed, it would be diflScult to estimate the outlay " which the establishment of a business like that of the Hudson's Bay " Company, in the wilderness of Oregon, remote from every source " of supply, necessarily involves. The outlay in exploring the coun- " try and opening roads, the cost of labor, the strong force required " as a protection againf . the natives, all necessary for the change " effected in the country, by which large tracts are brought into " cultivation, and made to produce the necessaries and comforts of a " civilized life, and the Indians were conciliated and led into friendly " relation, were enormous, and resulted in benefit to the United ■" States,which, judging from the history of other colonies, it would ■** have cost millions to acquire." The aid to settlers, the rescue of American citizens, and the assis- )fHer [of life, [sBay idness over- them I which If led to liform- gives esta- made ^is- por- some vilize 23S tance and supplies furnished to the United States authorities in the Indian Wars, are shewn in his answer to the 17th Int. pp. 213 214. Mr. Odgen's journey in 1848, and the service rendered by the Company through him in the perilous undertaking of rescuini^ from the Cayuse Indians upwards of sixty women and children held in captivity by them, after the murder of Dr. Whitman and others, are acknowledged by Governor Aberncthy in a letter fyled of record under the designation C 1. The language in which this letter is expressed entitles it to particular attention, as it not only reco"-- nizes in warm and manly terms the importance of the services rendered, but also frankly admits the inability of the Americans to rescue the suflferers. These services were gratuitous. No compensation has ever been asked, nor are they now stated in order to make them the ground of any claim. But it is not unreasonable to use the fact as an evidence of the great power then possessed by the Hudson's Bay Company over the Territory, and of the beneficial manner in which that power was used for the protection of American citizens then as now, bitterly hostile to its interests and existence. The undeniable fact is, that the influence and exertions of the Company preserved the lives of upwards of 60 persons, who have now numer- ous descendants in Oregon, when all other authority and agencies were powerless for that purpose, and whatever may be paid by the United States to the Huddon's Bay Company, this gift of the lives of its citizens must always remain an unpaid debt. But not only was there this readiness upon a call of humanity, which sank as it ouglit to have done, all distinctions of nationality, and the remem- brance of all controversies, the same disposition and the same power to aid, were manifested in the promptitude with which applications were granted for supplies in the Indian wars of 1855 and 1856. Upon the request of the respective governors of the territories of Washington and Oregon, stores were furnished to a large amount, not less than $100,000, to the Volunteers engaged in that war. Of this amount the large balance of some 130,000 still remains unpaid, although the whole claim was established by vouchers from the proper officers (Mactavish pp. 214, 232). The letters of Governors Curry and Stevens on the subject of these supplies are of record under the numbers C 3, C 4, C 5, C 6. r, 234 It is, perhaps, unnecessary to dwell upbn these facta. A re- ference to the evidence of Mr. Mactavish, on the pages cited, will afford sufficient information to justify the conclusion, that without the aid of the Hudson's Bay Company, a vast amount of expense and difficulty involving probably great loss of life, would have been suffered by the American inhabitants of the Territory in their quarrels with the aborigines. The Respondents have produced the accounts of the Hudson's Bay Company for the supplies, and also a witness, R. S. Atkinson (pt. 2, p. 181), who testifies that these accounts were not cut down more than other accounts. It is really difficult to see what sort of an answer this is in justifica- tion of depriving the Company of $30,000 upon its account for some $100,000 for goods actually furnished at reasonable prices to the United States in its hour of need. That other persons were dealt with as unjustly as the Company, or that they sent in false claims, does not change the fact that the Hudson's Bay Com- pany furnished the United States $30,000 worth of supplies for which, by Mr. Atkinson's own shewing, it has never been paid. His evidence in his answers to the cross-interrogatories (p. 188) confirms that of Mr. Mactavish. Another topic to which I would briefly direct attention, is the conduct of the Company towards early American settlers in Oregon. It seems pretty evident that after 1846 the people from the first assumed a hostile and troublesome attitude. It has been said, and probably with truth, that the Company was opposed to the general settlement of the country by those unfavorable to its interests. Certain it is, that by the result it was deprived not only of considerable advantages in the Fur Trade, but also of a very large portion of its most valuable possessions. Yet it cannot be doubted after a careful examination of the whole evidence, that the Company was of great assistance to the settlers by fur- nishing them with supphes and means of transport when they could not have been obtained elsewhere. Dr. McLaughlin may have gone, and did go beyond a prudent limit in the advances made by him to this class of persons, and much that was so ad- vanced has not been and never will be repaid. But the fact stands out in unequivocal significance and clearness, that by helping ihe settlers when there were none others to do it, the Hudson's 23", Bay Company did materially aid in the settlement of the country, and in making it fit for the abode of civilized life. Mr. Mactavish says (p. 232) : " The Company claims no right " to exclude settlers from Oregon, cither north or south of 49°. «* 1 think they never encouraged or discouraged settlement farther " than that when emigrants came they helped them on as much " as they could. They tried all they could to induce the Indians to " settle down and cultivate land like white people, btit it was of no "effect. Simmons, one of the earliest immigrants, speaking of the year 1844, (p. 134) says : " The Indians were friendly, and treated -' ns '-^ry well all the way from Fort Hall to Fort Vancouver, " and I attribute that treatment to the influence of the Hudson's Bay " Company. I was loaned a batteau to bring my family down the " river, free of charge, and the Company treated other emigrants " in the same manner. They let us have provisions, seed, grain, *' and breeding pigs ; they also gave us employment." Similar facts are established by other witnesses, ^ome for the Claimants, and several for the Respondents. Of the latter, Meek (p. 77-8), Campbell (p. 230) and Applegate (p. 304-5), are referred to. The memorial to Congress in 1845, (Claimants' Doc. Ev. F 1) in its gene- ral tenor affords evidence to the same effect ; and Admiral Wilkes in his narrative, after speaking in terms of high commendation of the course pursued by the Hudson's Bay Company in its aid to settlers, its salutary moral influence, and in other helps to the civilization of the country, says in pointed language, (see sup. p. 89), " Wherever " the operations of the Company extend^ they have opened the way to ^^ future emigration, provided the means necessary for the success " of emigrants^ and rendered its peaceful occupation an easy and " cheap task.'''' The Claimants consider the proof on this subject abundant to justify the pretension set up in the Memorial and expressed on the preceding pages, that they were in an important, if not in a chief degree, instrumental by their aid to immigrants, and by their other agencies and operations in the country, in rendering it fit for immediate settlement, thus making it of far greater value to the United States, and that it is but just that they should receive reasonable compensation for what they have so done. I have now offered all I have to say on the subject of the grounds ' I ^i I 1 i' ■] 236 of claiir. set out in the Memorial, and '.vhich should constitute the basis of the award. I cannot, howcer, finally dismiss this subject without exposing for consideration certain peculiar hardships to which the Company has been subjected, and suggesting that they ought not to be overlooked in assessing the amount to be recovered . I first allude to the fact, that for many years the United States, either directly by its officers, or indirectly by its citizens, has been in the possession and enjoyment of a large portion of the most valuable property of the Company, and since 1860 of the whole of it, with the exceptions of Colville and the small posts of Okanagan, Kootenais, and Flatheads. For this enjoyment, interest ought to be paid upon the value at which the property may be assessed, which, in fact, constitutes its price. Such is the rule common to all sj stems of law, and this interest dating, m so far as Walla Walla, Fort Hall, and Bois^ are concerned, from 1855, and for Vancouver from the military reserve in 1849, for a portion, and from 1860 at least (if not further back), for the remainder, ought to be added up to the date of the award, and make part of the sum to be paid as an adequate money consideration for the transfer of such property. The other matter lo ^a hich I have above alluded as one of pecu- liar hardship, is the mode of resistance to the claim. As I have already stated on the first page of this argument, no formal answer was given to the Memorial. To that course the Counsel for the Claimants did not object, from a feeling that this was not a proceeding which ought to be regulated and restrained by the narrow technical rules which belong to proceedings in an action at law. He was quite willing that such scope should be taken as was consistent with reason and with the large and national character of the subject of controversy. But the result has been that advantage has been taken of the absence of any special defined issue, to dispute every- thing. Witnesses in great numbers have been brought forward to make statements on all kinds of topics, many of them having but a remote bearing upon the su'yrot of the claim, and others none at all. No offer has been made of ari ;,' amount whatever. Nothing has been admitted. The course has ueen a universal denial, a ne- gation of all and everytl.in^, bo\Y3\ ir palpably true or perfectly es- stablished. 237 Of the testimony adduced by the United States, threc-fbuvths at least, are useless, a mere incumbrance of the record. Most of the gentlemen of the army who have ever been on the western side of the Rocky Mountains have been examined, and a mul- titude of civilians has been added to them. These examina. tions have spread over more than fourteen months in time, and over nearly the whole of this continent, and even beyond it, in "eo- graphical extent. We have had them from all parts of Oregon, from this city, New York, Cincinnati, Detroit, North Carolina, the Tortugas and from England. The consequence of all this is an enormous accumulation of expenses and costs, certainly, not less than 180,000 in amount. And it is submitted, that these costs, and all the costs to which the Claimants have been, or maybe, put, ought to be paid by the losing party which has made no offer, al- though, it was absolutely certain that a large sum must, at all events, be paid. A schedule, shewing how great an amount has been expended, will be hereafter presented. I invoke with respect to these costs another rule which is common to all systems of law, and under its sanction, and that of common justice, urge upon the consideration of the Commissioners, that the amount should be added as making part of the sum which the claimants may be de- clared entitled to recover. I have thus, with groat detail, laid before the Honorable the Commissioners this claim in all its particulars. It l;as bsen my duty to do so under the course of defence which has been adopted, and which is a piece of gigantic detail upor all matters which, however remotely, can affect the case, and upon a good many others which have not the most distant connection with it. But while I have yielded to the necessity of the position into which the Claimants have been forced, and feel that they have succeeded even upon this retail principle, in shewing that a much larger amount is really due than has been claimed, I have never departed from my first opinion, that the award upon the claim ought not to be framed item by item like a judgment based upon an account for goods sold, but that it should rest upon a consideration of the rights in question as a whole. The magnitude of these rights ; their pecu- liar nature and indivisible character ; tac place formerly hold by the Hudson's Bay Company in the Oregon country ; the position Q u J.li I i 11 »; h •■ ii E! t 238 of the parties ; the digaity of treaty stipulations ; the political and natior^al considerations involved, and the constitution of this Com- mission, all suggest, that it is consistent with the higher justice and with the spirit of the treaty, that, instead of specifying the value of particulars, one entire sum should be named as including the value of all the rights of every description contemplated between the two great contracting parties; and that this sum should be the adequate money consideraion for the transfer of such ri<^hts. I believe that u just award might have been arrived at, without this enormous accumulation of evidence and other pro- ceedings, if the claim had b3en mst frankly and in good faith ; and even now after all this labor and expense have been suffered, it is still better that the award should assume this general form. It would, of course, ba out of my place to do more than merely to ex- press my own opinion upon this subject. It is one which belongs entirely to the tribunal, and must be dealt with according to its discretion. I leave it, therefore, in the form of a suggestion, with- out urging anything in the way of direct application or argument upon it. The advantages of it will readily occur to minds as prac- tised as those which I have the honor to address. The exposition of the case of the Claimants is here concluded. It has not unfrequently been difficult in the progress tlirough it, to determine how much of detail would be useful, and when pro- lixity might without disadvantage be avoided. I may have erred more than once on the one side and on the other ; but the claim is now committed for judgment, with confidence that the discernment and experience of the tribunal wiii detect and remedy any feeble- ness or defect, which may become apparent in the mode of present- ing it. The functions of the Commission are essentially judicial, but they are also something more. It has to ascertain and settle not upon narrow technical rules, but upon the broad grounds of truth and justice, the amount which ought to be paid under the treaty for bringing this long pending controversy to a termination ; and if the pai-ilo^.. Claimant or Respondent, have failed to place the Commissioners in a position to decide with a full knowledge upon all the questions involved, they will not adjudicate upon such im- perfect knowledge, but will call upon the one party or the other, or upon both, to supply the instruction necessary for a thoroughly 239 intelli^'ent decision of the whole case. Such is mKloubtedly the scope°of their powers and of their duties. Should it therefore appear to them that anything has been omitted either in the argument, or in the evidence upon which it is based, material to this complete understanding and perfect appreciation, the Claimants arc rcndy to furnish to the utmost of their abiUty all such further mformation as may be required. They make this declaration as an earnest of willingness to submit their pretensions to the most exhaustive ex- aminaUon But at the same time they firmly believe, that by the cise as it now stands, these pretensions are justified and estabhshed to their fullest extent ; and that no less than the amount claimed oucdit to be awarded as the value of their rights, and the adequate money consideration for the relinquishment of them to the United . States. BEITISH AND AIEEICAN JOINT COMMISSION. INDEX TO ARGUMENT FOR THE CLAIMANTS in THB MATTBB OV THE HUDSON'S BAY COMPANY, AOAIRST THE tJNITED STATES. I TABLE TO THE INDEX FOLLOWING. Ill if; ■; ! .i!' Tlie first paging; refers to the Index, tbe second to the Arj^nment. Introductory Statement, and Statement of Propositions, p. 2-6 ; p. 1-29. Vancouver, p. 6-10 ; p. 29-93. Champoeg, Coweeman, p. 10 ; p. 93-95. Fort George, and Cape Disappointment, p. 10-11 ; p. 95-96. Chinoook, p. 11 ; p. 96. Testimony for United States on last three Posts, p. 11 ; p. 97-99. Umpqua, p. 12 ; p. 99-103. Walla-Walla, p. 13-14; p. 103-113. Fort Hall, p. 14 ; p. 113-119. Bois^, p. 14-15 ; p. 119-123. Okanagan, p. 15 ; p. 124-125. Colvile, p. 16 ; p. 125-133. Kootanais and Flatheads, p. 16 ; p. 133-135. Testimony for United States not before Noticed; p. 16-18 ; p. 136-175. Eight of Trade, p. 18 ; p. 175-181. Navigation of Columbia, p. 18 ; p. 181-187. ForRTH Proposition: ) p. 18-20; Failure of United States to protect Company, } p^ 187-218. Aggressions, &c. ) Fifth Proposition : Liability of United States for highest value, p. 20; p. 218-220. Result of evidence as to value ; p. 21 ; p. 220. Former Negotiations, p. 21-2:^ ; p. 220-230. General Considerations, p. 22 ; p. 230-239. :i INDEX. MEMORIAL: General Statement, I.-IV. Lands and Trading Establishments, IV.-X. Right of Trade, X.-XL Navigation of Columbia River, XI. Expenditure in opening up Country, &c., XI.-XII. Difficulties under wl '^h the Company make their claim XII.-XIII, ' Summary of amounts claimed, XIV. Motion to Amend Memorial: Land at Vancouver increased by i£ 85,000. Land at Colvile increased by jGQjSOO. ARGUMENT: Introductory Statement, p. 1-8. Origin of Co. in 1670, (A 1. p. 271) p. 2. Powers of Company sustained by British Government, ) o Mr. EUice, Greenhow, ) ^' Mr. Bibb, opinion of, on powers of Co., p. 4-5. Rise and Rivalry of N. W. Co. in 1783, p. 5. Union of Old and New N. W. Companies, in 1804, p. 5. Establishes Posts on Eraser Lake, 1806 ; Kootanais and Elatheads about 1808, and purchases from P. F. Co. in 1813, Okanagan, Astoria and Post on the Spokan, p. 5. Evil effects of rivalry between H. B. and N. W. Companies, p. 5-6. Irving, Twiss, Greenhow, Blue Book. Merger at instance of British Government by 2 Geo. IV. Licenses of Exclusive Trade, 1821-1838, p. 6. mpanj, p. Result op Evidence upon the several specified heads of DEMAND, p. 220. 1— Aggregate value of Vancouver and Posts, $1,289,958 p. 220. 2— Value of Trade not less than $950,000, p. 220. 3— Right of Navigation not less than $1,460,000, p. 220. 4— Loss and damages $200,000, p. 220. Former NEGOiiATtoNS and Official Statements, p. 220-230. Only two mentioned by Respondents, the one of 1849 and that of 1860, p. 221. A third omitted, p. 221. History and cause of these offers, p. 221. Letters in Documentary Evidence F, p. 221. F 4, Mr. Ogden to Sir G. Simpson, 1851, p. 221. Sir J. Pelly to Sir G. Simpson, 1848. F 5, First proposal to purchase, p. 222. F 6, a to g; second negotiation, 1852; between Mr. Crampton and Webster, p. 222-3. Lord Napier and Mr. Stevens' report, p. 223-4. Applications to Congress, p. 223-4. Despondency of Company ; Documentary Evidence, pages 446-52-4, p. 224. Mr. Crampton to Sir George, F 6, f and g, p. 224. Mr. Lumley to Sir George, F 10; to Mr. Hammond, p. 225. Mr. Si^hepherd ; Mr. Berens to Sir George, p. 225. Project of appointing Surveyor General of W. T. to adju- dicate on P. S. A. Co.'s rights, and correspondence thereon, p. 226. Company 'lorapelled to abandon the country, 1860, p. 226. Offer of Company to accept $500,000 and circumstances under which made, p. 226. The foregoing negotiations not to be received as evidence of ap- preciation of value of Co.'s rights, p. 227. The only apparent appreciation of value, U. S. Doc. Evi- dence, page 250, is $2,330,000, exclusive of navi- gation, p. 227. I-!' Former Negotiations, &0 : — (^Continued.') Sir George to Mr. Marcy, F 7, p. 227. ' The oflfer to accept $1,000,000 occurred fifteen years ago, p. 227. The offers can have no influence in the judgment of this case ; reasons : p. 228. 1st. They were a proffer of compromise, p. 228. 2nd. They were accompanied with estimates showing greater value, p. 228. 3rd. They were never accepted, p. 228. 4th. By the Treaty of 1863, all these were waived, &;c., p. 228. Denial of rights of Company in England and Canada, p. 229. Documentary Evidence of U. S., A. 12 ; Sir B. Lytton'a Despatches, p. 229. Reply and Protest of Governor Douglas, p. 230. Report of Mr. Brown and the Canadian Delegates, p. 230. General Considerations, p. 230-239. Opening of the country by the Company : Extract from Memorial, p. 231. Influence on Indians, &c., &c., p. 231. Sir J. Douglas, p. 231. Mactavish, p. 232. Gov. Abernethy : Letter of, C 1, p. 233. Stores furnished by Company to Volunteers, and $30,000 still unpaid therefor, p. 234. Evidence of Atkinson on this last, p. 234. Conduct of Company towards American Sett'ers, p. 234-35. Mactavish, Simmons, Meek, Campbell, Applegate, Doc. Evidence F 1 ; Wilkes, p. 235. All the property of the Company in possession of the United States and its citizens since 1860, except Colvile, Okanagan and Flatheads ; and interest fairly due to Company in consequence, p. 236. Mode of resistance to Company's claim, p. 236. Costs should be paid by United States, p. 237. Conclusion, p. 237-239. I ) I ^