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Les cartes, planches, tableaux, etc.. peuvent dtre film*s A des taux de reduction diff«rents. Lorsque le document est trop grand pour Atre reproduit en un seul clich«, il est film« A partir de Tangle sup«rieur gauche, de gauche A droite. et de haut en bas. en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. 1 2 3 1 2 3 4 5 6 ^ a^' Vp .1\^0. i It t^ftrrlW^^ ) ts OREGON INDEMNITY. Claim of Chief Factors and Chief Traders of the Hudson's Bay Company, thereto, as partners, under Treaty of 1846. 1892. IIsTDEX. Page. %"opsis 5-9 Accounts : — H. B. C. with Chief Factors and Chief Traders 19-21 American Case 12-18 British Case -.1211^ Chancery, judgment in 53 Chief Factors and Chief Traders : — r-ed Poll (of Partnership) 182 1 22-26 Deed Poll (continuing) of 1834 31 Paid (share) on surrender by H. B. C. to Crown in 1869 • • • • 32 Partnership 18-39, 55 Status, as per evidence of Governor Sir G. Simpson and Kight Hon. Sir Edward EUice 34-39 Claims : — Treaty Indemnity ...12-18 Chief Factors and Chief Traders in H. B. C 6-26, 34-39 Correspondence, ad rem, between Chief F's and Chief T's . .42 49 Credits as per Deed Poll 20-2 1 Debits as per Deed Poll 20 Deed Poll (of Partnership) 182 1 18-26 Deed Poll, continued in 1834 -51 Establishments (Trade) 14-26, 34 Evidence, ad rem : — Before Commons Committee, 1857 15-34, 35 Sir G. Simpson 15, 34 Right Hon. Sir E. Ellice 35, 37 Hudson's Bay House, London 20, 53 Huskisson, M. P., Hon., Protocol, 1826 13 Judgment in McTavish ef al. vs. H. B. C. in Chancery 53^ Lands in Fur Trade : — British Columbia i^ London, England 20, 53 Oregon 12-18,38,42 Puget's Sound 15, 45 Treaty purview 12, 15 I^aw of case c 2 McLeod (John, "Senior," Chief Trader) :— Claim *••• 56 Credential of present Claimant 5" Sp.cial Service ad rem 27-30 New Hudson's Bay Company :— Basis of purchase, 1863 40 Bill of Sale 4° Oregon Indemnity not included 42 Standing, ad rem 40-53 Partnership : — Charter (Appendix A.) 57 Deed Poll of 1821 2226 Deed Poll, continued, 1834 3^ Letters, &c., of H. B. C. in 4148 Real estate 14. 20, 53 Rebates by •' New " H. B. C 49 Reports (Official) ud rem : — Brown (Hon. G ) Canada Delegates (Cartier and McDougall) C Settlement : — Delay in ■ Statement for '• Ships, &c., in Assets Stock of H. B. C 41 40 55 56 20 38 Treaty (Oregon) of 1846 :— Extracts 12 Indemnity 12-14, 4i What 12-18 Whom to 12-18, 38, 51 Treaty of 1825 :— Protocol 13. 14 Subjects of Britain 12-18 56 56 27-30 40 4o 42 40-53 57 22-26 31 4148 ■ 14. 20, 53 49 41 40 ■ 55 56 20 38 12 . . . 12-14, 41 12-18 12-18, 38, 51 13. 14 T2-18 SYNOPSIS — OF- Claim of Chief Factors and Chief Traders of the Hudson's Bay Company, as partners, in THE INDEMNITY UNDER THE OREGON TREATY BETWEEN GREAT BRITAIN and THE UNITED STATES OF AMERICA. FACTS. 1. On 15 June, 1846, Treaty was made between Great Britain and the United States of America, under which the former ceded to the latter all claim in or to the region, known as Oregon, south of the 49th degree of North Latitude, west of the Rocky Mountains to the Pacific, comprising all that part of the watershed of the Columbia south of said latitude, the basin of Puget Sound— land and water— and all the rest of the Pacific Slope south as far as California. 2. All this vast region was then entirely in the possession and control of the Hudson's Bay Company, under a strong military organiza- tion necessary to their trade operations, including several strongly fortified forts with cannon ; also large farms for raising grain and farm stock — the whole estimated (fairly) by the Company ai tive thousand acves under culture. For all this, the Company claimed one million pounds sterling. See on this point the evidence ol Sir George Simpson Governor of the Company, as hereinafter cited. 3. The cession was of the whole territory and establishments, forthwith. 6 4 Thereon an indemnity was stipulated to "all British subjects " for all property and rights then — as the Treaty textually states — " already lawfully acquired "— - -.ngst them, specifically, to the ** Hud- son's Bay Company ", as then being. That Company had — as admitted in the Treaty — lawfully acquired " possessory rights " on the whole land, to wit under Crown License from Britain for exclusive Indian trade throughout the region from 1821 to the date of the Treaty. 5. The Company's claim, at the Treaty, for these "possessory rights, *' was one million pounds sterling. The American Government declined to pay so much, but offered one million dollars. This, the Company declined to accept. There it remained in abeyance for over twenty-one years : not from any default to move in the matter on the part of the Company or the said British subjects concerned — all powerless per se, to enforce due settlement — but from the shere neglect of the two Governments to do justice in the matter, notwithstanding the urgence of the said claim by the Company or, at least, by the said chief factors and chief traders, from time to time. 6. That in or about March, 1868, over twenty years after the Treaty, the " New " (the present) Company — as appears by their own admission when repeatedly applied to by the claimants — formally accepted and recieved the said indemnity from the Government of the United States. That such acceptance by them could, legally, only be as necessary gesfor negotiorum in trust for said beneficiaries (at date of Treaty afore- said) or their legal representatives. 7. That the indemnity in question accrued and determined, absolutely, at once and forever, at such date ; for the real and only loss was to the Company as fAen being, with its chief factors and its chief traders tken being : and which could not, in the nature of things, accrue to the Company as subsequently constituted, or to any other chief factors or chief traders in it, who never had any right in the property so ceded. 8. That addressed on the subject, in enquiry, by the Chief Factors and Chief Traders of 1846 from time to time, the Hudson's Bay Com- pany — both that being before the sale of 1863 to the so called New Hudson's Bay Company, and the latter — answered with a promise of " due consideration " of the claims of the said Chief Factors nnd Chief Traders, or their legal representatives in the matter " when " — as 5h subjects " illy states — ) the •• Hud- -as admitted n the whole isive Indian 'reaty. " possessory but offered •t. ; years : not Company or , enforce due ments to do aid claim by chief traders, irs after the by their own Its — formally iment of the as necessary Treaty afore- determined, and only loss and its chief hings, accrue chief factors Tty so ceded. Chief Factors n's Bay Com- called New a promise of Factors and " when " — as promised by them in terms — the Company's claims and the American Government under the Oregon Treaty are (id est^ should be) "settled.' That, however, to a similar enquiry, by certain retired Chief Fac- tors so interested, the answer of the New Company, by their Secretary, was in direct denial. This, with oth*.. ners on the subject, are given, at length, in the present pamphlet, wiiii other evidence, showing how ^the matter stands. 9. That by the Original D' • Poll jf Partnership, of date 26th March 1821, continued in 1834, to an 'unlimited period," and un- changed as to Chief Factors and C^'ef iVaders till 187 1, these were partners in the concern to all intents and purposes, for "loss" as well as profit, and were, rateably, charged, m debit, annually, for all property, real and personal, in the trade and concern, as appears by full citation on this head, in the present pamphlet, from the said Deed Poll. 10. That by the said original deed of partnership, the whole "con- cern" — including all plant and realty, in England as well as in America — was divided into 100 shares, whereof 40, subdivided into eighty-fifths, were to belong entirely to the Chief Factors and Chief Traders for the time being, in the proportion of two eighty-fifths to a Chief Factor and one eighty-fifth to a Chief Trader. 1 1. That the whole property — stock, and plant, and realty of the Company was made by its Trade ; save what realty — over and above their trade posts with incidental farm and building sites — they got as a consideration for their surrender, besides the ^^300,000 sterling, from Canada in 1869. That moreover, in the accounts annually rendered to the Chief Factors and Chief Traders, according to the terms of the original Deed Poll — as cited in present pamphlet — they were debited mih all realty as well as plant, goods, monies and all expenses in the trade, and also with interest thereon, at 5 per centum per annum, said interest payable only to the 60 shares afcesaid — viz, "Stock-holders" proper. That as to such "Stock-holders" — eo nomine — or as a distinct and se- parate interest, in the concern, there is no mention in the original or any other organic deed of the partnership concern. That that partner- ship was integral, and for the trade in question alone, and that the rights in question were alone so acquired. 12. That there was no right, franchise, or holding in any way by the company, "Old" or "New" in question, as to the subject of indemnity 8 aforesaid, save as a Trading Company, under the Ciiarter and Crown License herein set forth, or alluded to. 13. That therefore only the said Company — as being at the date of the said Treaty,'and as then, in severalties, constituted, viz, the Chief Factors and Chief Traders in their respective shares, and the holders of the other sixty shares (out of the hundred aforesaid) — were in their respective shares, severally, at the end of the then current year, viz, ist June 1847, or so soon tHreafter^ in like current trade year for such accounting, as the indemnity in question should be paid, entitled to receive such indemnity. 14. That the delay in arriving at a final assessment of damages or loss, actual^ for indemnity, did not cancel, nor derogate to such right and claim, accrued, and actually due and stipulated at the date of the Treaty. That at and ever after the date of the Treaty, the then determined right of indemnity aforesaid, obtained and held, and continued to hold as to the said partners, then being ; and in case of their death before payment became due and payable in due courts, lo their legal repre- sentatives. 15. That the position of the Company, as a Company /^r «, was from the necessity of the case, merely, as gestor negotiorum, in agency and trust : and as such, accountable to the principals concerned, in due course. That as to that course, it is specifically prescribed in the deed of partnership cited. 16. That that course, as an obligation under the deed, is of the essence of the contract or covenant of partnership. That it enjoins and imperatively requires an annual rendering of accounts, to each partner toist June in each year. See citation, on this point, from Deed Poll, clause 2. 1 7. That in the Bill of Sale or Schedule of Assets (total) cf the "Old" Company to the "New" in or about ist July 1863, as herein more fully set forth, the said indemnity, or claim, thereto was — ve>y properly — not included, as in fact, // did not belong to the Compau,^ (vendor) as then being. 18. That the present (the *'New'') Company paid nothing for it. That moreover, by a system of ^^rebates,'' out of what monies and property they got, under, or under colour of their purchase from the and Crown ; at the date iz, the Chief olders of the ir respective ; June 1847, counting, as eceive such damages or such right date of the determined ued to hold ieath before • legal repre- per se, was n, in agency xned, indue 1 the deed of ;d, is of the enjoins and each partner 1 Deed Poll, [total) of the 3, as herein :o was — ve>y 'he Compau,^ ling for it. monies and ase from the ■nr 9 oldjCompany, they have, by several millions of pounds worth, been fully recouped for the one million and a half pounds (sterling) by which they in toto, bought out the "Old" Company then (ist July 1863) being. That in face of such facts, the retention of said indemnity money and refusal to pay over the same to duly accredited claimants is simply illegal. LAW. That as to the law of the case, it is really too obvious for discussion. Authorities are cited as to the legal character . of the "Possessory rights ' in question, in internatioual relations, which are certainly conclusive. As to the more domestic question of the rights of the Chief Fac. tors and Chief Traders relatvely to the Hudson's Bay Company quoad realty in England, viz proceeds of sale of the Company's House (Office) in Fen church street, London, a decision, in Chancery, is given, of date 26th February 1868, in London, most positively, and strongly as possible, in the sense contended for in the present instance. How the legal opinion referred to, about or after the date of that decision — reported, at length, in the London TtPies 27th February 1868 — in refusal, by the Company, of such claim, could disregard such high judicial decision on such point, in its htax\r\g a fortiori on the present case, remains to be seen. The case referred to is given in this pamphlet as reported, viz, MacTavish et al. vs. The Hudson's Bay Company. OREGON INDEMNITY. TREATY OF 1846 — BErWEEN — GREAT BRITAIN AND THE UNITED STATES OF AMERICA. Shares of Chief Factors and Chief Traders of the Hudson's Bay Company in said Indemnity. Present Position of the Claim. w TREATY Dated 15th June, 1846— Ratified London, England, 7th July, 1846. EXTRACTS. Article III. "In tiie future appropriation, of the Territory south of the 49th parallel 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 shall be respected." .■\RTICLE IV. " The farms, lands and other property of every discription 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 importance, and the United States should signify a desire to obtain possession of the whole or of any pun thereof, the property so acquired shall be transferred to the said Govern- ment at a proper valuation, to be agreed on between the parties. " CLAIM OF THE HUDSON'S BAY COMPANY. These " Possesory Rights " were, as explained by Sir George Simpson, Trade Governor of the Company, when examined before the Commons Committee of 1856-7 on the subject, acquired by them under License from the Crown for exclusive trade in that region. The answers on this point are to questions Nos •' 1 108 " to "11 24 " in the official (blue book) report of said Committee. •The italislzatlon. here and elsewhere in this pamphlet, is by the author, in argument. igland, of the 49th said Treaty, )f all British id or other respected." )n belonging I side of the f. In case, I considered 'nited States • of any p«ri said Govern- .rties. " Sir George d before the ed by them egion. The :i24 " in the tr, in argument. 13 They were essentially trade rights, and possessions, viz of lands "a^ in fee sinnple". The admissions of the United States authorities on the subject, including the published opinions of the Secretary of State, for the time being, of that Government, and conducting for it the negotia- tions leading to the Treaty, viz, the Honourable Daniel Webster, and after him, at a stage subsequent to the Treaty, the opinion of the Honour- able Mr. Stanton, Attorney General for the United States. To these may be added, as advanced at the time, the following judicial decisions ad rem by the Supreme Court, U. S. : 6 Cranch 878 ; Wheaton 535 ; 9 Peters 74 ; 13 Peters 192 ; alr.o, specially, the judgment of Mr. Justice Ca^n in Smith vs. Clarke, 13 Peters, 201. Also, on the other side, but in perfect concurrence, the opinion of the Honourable Justice Charles Dewey Day, of the Canadian Bench, on the part of Great Britain, for indemnity. The former declare, unanimously, as to the status of these "Pos- sessory Rights" : the latter does so, too, and further, specifically declares as to, and in favor of the rigths of the Chief Factors and Chief Traders of the Hudson's Bay Company, as constituent /arr/^^rj of that body and entitled to share in the indemnity accordingly — the whole as now, here- in, urged. As to the nature and legal character, and political bearing of these claims, an extract is offered from the memorial or statement of the case, as laid by Judge Day on behalf of the Hudson's Bay Company as British subjects in the purview of the Treaty, before the Commissioners appointed by the respective Governments to take evidence and report as to the value of the rights and subjects for Indemnity in question. On the particular question of the position and rights of the Fur Traders, id est, interest arising from the Fur Trade itself on the region in question, Judge Day, on page 18 of his memorial and argument, states : Clause 7. *' The British statement annexed to the protocol of tlie 16th December" (November?) "of 1826 *, distinctly and repeatedly affirms the establishement and possession of posts as well to the Southward as to the Northward of the Columbia river by British subjects t (neceessarily meaning * By the Right Honourable Mr. Huakisson, M. P , nith reference to Treaty of 1825, with Ruasia. t The only 'British subjects"— yea the only White men of any nationality then there, were the OfHcers and Servants of the Hudson's Bay Company, wnich then included those of the then extinct North West Fur Company and the writer's father as partner and thief represijntative there of the Hudson's Bay Company proper. M. McL. 14 the North West and Hudson's Bay Companies) ; and in strong and pointed terms avows the determination of the Government to protect the interest and establishments which British industry and enterprise have created both as regards settlement, freedom of trade, and navigation. Clause 8. " The country known as Oregon, extented far to the north ot the 49th parallel of North Latitude. It reached to tlie 54th degree and was all included in the claim of the United States. The establishments of the Hudson's Bay Company over the w^hole region originated in precisely the same manner and under the same circumstancs as those on the Colum- bia River. They were indeed parts of the entire system of settlements in Oregon, comprehended in the recognition already stated. And the British Government granted in its confirmations of title to lands there, 3080 acres of land in Vancouver's Island ,* which, a« shown by actual sales, were worth more than the whole of the present Land Claim at Fort Vancouver." The Lands referred to were held in and for the Fur Trade, and were accounted for as such in the Company's annual accounts to the partners, viz, trade partners, as well as to the holders of the 6o shares out of the loo shares forming the whole stock or capital of the Company as hereinafter stated and explained. That the lands were so held, in and for the Fur Trade, appears clearly from the following circular on the subject .rom the Secretary (Fraser) of the Company, addressed to the Chief Factors and Chief Traders of the Company, on their e iquiry on the subject : Extract. " In reply, I am directed " {id est by the Board of Directors of the Company in London) "that the first sale of the Fur Trade Lands was in 1853. Since that period sales have been effected every year down to 1861, inclusive, with the exception of 1857, when there were no sales : and the proceeds of such sales liave invariably been carried to the credit of the Fur Trade, /or the oufit during ivhich the sales were effected.*' The cost of such lands, like all cost and outlay by the Company as per rule of partnership agreement, ad hoc, as hereinafter shown, had been charged to the debit of said trade accounts, and therefore, by the same rule, the proceeds of sale had to go to the credit side. Present site of th-? City of Victoria, and Harbour of Esquimault. ig and pointed ?ct the interest ve created both ar to the north 4th degree and establishments ted in precisely on the Coli^m- ' settlements in nd the British lere, 3080 acres les, were worth icouver." 'ttr Trade, and ccounts to the e 60 shares out le Company as •0 held, in and circular on the idressed to the leir e iquiry on ird of Directors rode Lands was r year down to e no sales : and ':he credit of the ed." he Company as :er shown, had lerefore, by the Je. ; 16 EVIDENCE, ASIiTHE " POSSESSORY RIGHTS ", GIVEN TO COMMONS COMMITTEE OF 1856-7. Exai..;nation of Sir George Simpson, Trade GovLrnor in America, of the Hudson's Bay Company. Question 1108— (by Right Honourable Edward Ellice, M.P. Member of Committee). You have possessory rights, I believe, under the Treaty (Oregon Treaty) ? Ans. — Yes. Q. 1109— (By Roebuck M. P.). But has not Oregon been given up by Treaty 'i Ans. — By that Trea; y our possessory rights are retained. Q. 1110. — What possessory rights have you? Ans. — We have various establishments, pasture grounds, hunting grounds. We claim very large possessory rights. Q. 1111. — Have you not also the free navigation of the river? Ans. — Yes. Q. 1112.— (Roebuck). What do you mean by possessory rights ? do you mean rights under the charter ? Ans. — Rights as British suhjectB previously to the Treaty. Q. 1113. — Had vou possession of land? Ans — We fiad possession of land. Q. 1114.— How did you acquire it? Ans.— Under License to trade. Q. 1115. — But that is not possession of land? Ans. — Yes, under the Licence to trade we had various possessions in the country. Q. 1110.— Do you understand that a license to trade gives you possession of the land ? Ans. — We understood so. Q. 111?. — What is tha interpretation which you give to the words 'right to trade'— that it gives rights to land ? Ans. — We conceive so. Q. 1118.— In fee simple? Ans.-i-I do not say under what tenure, but we consider that it gives us a right to the land. Q. 1119.— So that when you received by charter from the Crown a mon- opoly to trade over certain portions of territory, you believe that the whole of that territory was ceded to you ? Ans. — No ! — not the whole of the territory that we trade over, but the territory we bring into cultivation. Q. 1130. —How much land did you bring into cultivation in Oregon ? Ans. —I really cannot tell. Q. 1121.— Did you bring 100 acres ? Ans. —Fixe thousand acres. Q. 1122.— Info cultivation? Ans. — Yes. Q. 1123.— And those are all the possessory rights which you have ? Ans. — We have various establishments all over Oregon ; we have them in various parts of the Columbia River and Puget Sound. Q. 1124— (Right Hon. Edward Ellice). Are you aware that, in addition, there is the Puget Sound Company who also have those rights reser- ved under the Treaty ? Ans. — Yes,— that is an offshoot of the Hudson's Bay Company ; an Agricultural Establishment formed by the Hudson's Ba^ Company, or parties connected with or interested in the Hud- son's Bay Company encouraged by the Government of the day." 11 16 LEGAL AND POLITICAL CHARACTER OF SUCH POSSESSORY RIGHTS. • Opinion of Hon. Daniel Webster, Secretary of State U. S. of A. AS TO same; Also of Hon. Att>"»rney General Stanton, U. S. A. In page 35 of his memorial, ad hoc, Judge Day quotes, approvingly, in support of his argument, the following admissive avowal on the part of Mr. Webster when in negotiation for the Treaty. The doctrine is, and has ever been, since the organization of the great American Republic, one of cardinal public policy in it, based on the principle — one of natural law — that the primitive wild becomes his who first in good faith, and honourable endeavour, utilizes it to public weal, while primarily serving, probably, merely personal behest. In American phraseology it is known as " Squatter Sovereignty " : a claim repugned in general European polity ; but supremely respected in the virgin field of all America. In this connection it is ever to be borne in mind, that the region in question — traversed so far back as 1804-5 t>y the National United States Expedition, for exploration and national capture and annexation under Lewis and Clarke, in sequence to the primal discovery of the before then (to all civilized nations) mythic "Great River of the West", by Captain Gray, of the Commercial Marine of the United States of America, with his ship "Co/umdia," on 22nd May 1792 and who ther'jby, nem. con. gave baptism to that river, and the vast region — the richest in the world, saith the writer, who for years wa: a traveller through it, and sojourner there with his father, and saw, and in time gave tongue to the world of its wondrous wealth. From 1792 to the Treaty, it was, practically a " No Man's Land " — save of the primitive "lords" — the swarming bands of utmost savagery — who then, invincibly, held it. Quoad Britain and the United States, in so far as, from Discovery and commercial utilization, and settlement (if any) any national "rights were acquired, it was common" — or "disputed" — territory. Till the Treaty it was not in the national domain of either power. On that plane — as a basis — were the rights and claims in question discussed ; and the Indemnity claimed, and awarded. Thus, the Treaty was — from the nature of the case — sui generis — a law unto itself, in this SUCH TE U. S. of A. S. A. !, approvingly, ral on the part The doctrine reat American he principle — is who first in lie weal, while Sovereignty " : nely respected it is ever to be so far back as xploration and in sequence to lations) mythic mercial Marine , and when received, credit his account with dividends thereof." Article XXXIII provides : " No Chief Factor or Chief Trader whomay retire, or the representa- tives of such of them as may die, shall after oUch retirement or death, be at liberty, or have any right to inspect or question the accounts mentioned in Article XXXI" (viz, annual accounts to residents in North America) " but shall respectivi ly be concluded as to them, by the certificate of the said Governor and Company as to their correctness, as far as respects their shares and interest respectively," Article XXXIV requires registry in the books of the Governor and Company of Instruments of assignment of shares or interest of Chief Factors and Chief Traders or their representatives, within eighteen months after the "assignee's title or claim shall issue." Article XXXV requires Chief Factors and Chief Traders to enter, within certain prescribed limes, "into a covenant or agreement with the "said Governor and Company for the due observance and performance " by them the said Chief Factors and Chief Traders, of all the Con- " ditions, Agreements, Rules and Regulations mentioned and contained " in these presents ; and also all other rules and regulations to be from " time to time duly made pursuant to the siaid recited Indenture, and " the terms thereof, as far as the same shall be applicable to them " respectively ; A fid for the payment to the said Governor and Company " of one thousand pounds as liquidated damages for every wilful breach of " such conditions, agreements, rules, and regulations, by the parties so "respectively covenanting, and for the acceptam^e by them respectively " of the several provisions hereby made, or to be made for them and " every such appointment shall be voidable in case by the appointee " therein named shall omit or refuse to enter into such covenant or "agreement, within the time hereinbefore mentioned on that bahalf." The last Article (XXXVI) of the Deed Poll is important as giving its imprimatur to the whole "Covenant and Agreement" as being 26 essentially synallagmatic, and relatively obligatory on bothparties : with an admission, express or implied, of the dominancy of the Trade interest in the said " Concern " — so called — as more particularly represented by the Chief Factors and Chief Traders. The text — ipsissima verba — of that article is as follows : "The several articles, matters, and things thereinbefore contained, shall be binding on the said Governor and Company, and shall continue in force during the said concern as for as relates to articles i, ii, in, iv, XV, XXII, XXIII, XXIV, XXV, xxviii, xXix. XXXI and xxxn, without any right on the part of the said Governor and Company, or their Commit- tee for the time being, to defeat, alter or vary the same, either in the whole, or in part, without the consent, in writing, of the majority of Chief Factors and Chief Traders for the time being, respectively and as far as relates to the remaining articles contained in these presents, unless in the meantime, and until determined, altered, or varied by the said Governor and Company, in conformity to their power reserved to them under their said Charter, or the said recited Indenture, and until suffic- ient notice thereof to be given by the said Governor and Company of such determination, alteration, or variance ; and all persons having any interest, or being in anywise entitled, for the time being, under the said articles, or any of them, shall or may be entitled to proceed against the said Governor and Company, in case of any breach on their part, of any one or more of the said articles." )arties ; with rade interest presented by na verba — of e contained, lall continue I, II, III, IV, without any eir Commit- either in the oriiy of Chief and as far as Its, unless in by the said :ved to them i until suffic- Company of IS having any nder the said d against the part, of any < 27 JOHN McLEOD, "Senior", Chief Trader H. B. C. m The said John McLeod, named in the said Deed Poll, as one of the Chief Traders to be forthwith appointed, was thereafter forthwith appointed, and with as little delay as possible, did all that was required by the said Deed Poll and recited Indenture, to constitute him a partner in the said " Concern " as aforesaid, with its- incidental rights, obligations, and liabilitiles as aforesaid. That he did so, appears, incontestably, from thefact : That when in incidental sequence to the coalition of the two rival fur companies in question, formal delivery under inventories, had to be made of all the trade posts, and trade property generally of the North-West Company on the West side of the Rocky Mountains to " the Governor and Company of Adventurers of England trading into Hud- son's Bay ", the said John McLeod, alone, with no oihtx garde de corps than his wife and two young children — the writer one of them — was selected and specially delegated to make such acceptance and formally assume proprietary possession in the name and behalf of that company. He had ever been, since his engagement with the Hudson's Bay Com- pany, in 1811, a leading officer of that body in their field of contest with the North- West Company ; and as proved by abundant official record, judicial and parliamentary, and as now matter of history in foreign standard authorities — with every success. The service, then, in 1822, required of him, viz., to cross "the mountain," and the Pacific Slope to the sea, and there, formally, re- ceive the sword of surrender from a whilome foe — who, on the East side of their rampart of enterprise, had felt the edge of his service in the van of the fight, was one of special danger and difficulty. As proved before the Commons Committee of 1857, by the testimony of Sir George Simpson and others, two-thirds of the total Indian population on the fields of work of the two Companies, were on the West of the Rocky Mountains ; where, up to 1822, the Hudson's B.iy Company had had no trading establishments, and where the North- West Com- pany, and a few American (U.S.) Fur Traders, and on the Coast, the Russian Fur Company, to the exclusion of the Hudson's Bay Company, alone held the Indian trade of the country. :il •'I «0 / 28 The Itiuians themselves were, in those times especially, ever a most dangerous element to deal with, being naturally independent, turbulent, and hostile, and ever to be guarded against, at arms — night and day — and in every position and movement, throughout the country. Add to that the fact that during the six years immediately preceding, viz., ever since 1816 when by the capture of Fort William, on the western shore of Lake Superior, by the Earl of Selkirk, and of the whole line of trade forts of the North-West Company, along the Red River, the Assiniboine, and northward to the McKenzie Basin, chiefly under the leading, in the field, of said McLeod, from 1815 to 1821, the sole line of supply for the trade of the Pacific Slope of the North-West Company had been cut off, and the trade itself there paralyzed ; for that company had no shipping to supplement it by way of the Pacific. The result was that the whole native population of the West were exasperated to wildest hostility, against the Vv^hites, and the Whites themselves huddled in their fastened forts, starving more or less, some killed, and ever under arms in guard, held their own with a heroism which no " Indemnity " — in money — could adequately compensate or honour. The instructions, from the Supreme Directorate in London to said McLeod as they appear in original in the hands of the writer — was to at once proceed to Fort George (formerly Astoria) at the mouth of the Columbia, and there, in concert with certain leading partners or oflficers of the North-West Company, included as Chief Factors or Chief Traders of the new Hudson's Bay Company or " Coalition " as it was by them- selves, more strictly properly called, to reorganize and specially to extend to the Coast and Ocean beyond (what the North-V/est Company never had done) the general trade of the company. This, then and there, he (McLeod) with his few colleagues tliere, then, viz., Dr John McLoughlin and James McMillan, the .sole Chief Factor- and Chief Trader^ respectively then there, most effectively did. In that difificult task, the part of the sole representative proper, then there, of the Hudson's Bay Company, was exceptionally difficult. It was, however, thoroughly accomplished to the utmost satisfaction and perfect approval oi the Company, as represented at its Supreme Trade Council held in York Factory in July, 1826, where, then, said McLeod, personally, delivered his report, traversing, for the purpose, the continent from ocean to ocean, in a manner and under physical difficulties, probably unparalleled in the story of travel, and which has envoked ially, ever a independent, arms — night the country, y preceding, iarn, on the and of the ng the Red sasin, chiefly to 1821, the North-West 'zed J for that 'acific. The 2 exasperated 5 themselves e killed, and ;m which no )r honour. )ndon to said er — was to at louth of the ;rs or officers Zh'iet Traders was by them- ia/Zy to extend mpany never and there, he , Dr John tr- and Chief ative proper, lally difficult, tisfaction and preme Trade aid McLeod, the continent 1 difficulties, has envoked 29 special public record, in various ways. Amongst these, as authoritative, and emanating from one master of the subject, and universally recog- nized as a distinguished expert in such work, the writer would here give, as evidence ad retn, and as proper to the present argument, the report of Mr. Sandford Fleming, C. M. G., &c., of the expedition in question, in his Presidental Address (as President of the Royal Society of Canada) in 1889, under the general head " Expeditions to the Pacific," pp. Travels of Mr. John McLeod, 1822-1826." " After the union of the Hudson's Bay Company with the North-West Company, in 1821, Mr. John McLeod was the first officer to cross the Rocky Mountains from the east. Mr. McLeod entered the service of the old Hudson's Bay Company in 1811, and for the ten years previously to the union of the two, he was a zealous participant in the contest wifli the North-West Company. He was detailed to accompany and assist Lord Selkirk's first brigade of colonists from York Factory to Red River ; and he established trading ports at a number of places in the prairie region, to intercept the trade of the rival company. Mr. McLeod wlien selected by the united companies to proceed to the West side of the Rockj' Mountains, was stationed at Green Lake, about 200 miles north of Fort Carlton. He set out in 1822, with his wife and two young children. Heieached Athabasca River, and crossed the Mountains by the Athabasca Pass to the Columbia, and descended the river to its mouth. In the following years be was engaged at different posts in trade operations; during this time be left Kamk)0j)s, f o ll owed the Tbonip bon, and descend ed tl] p Fri>ser to th e Strait o f Georgia. " "Jt/r. McLeoa xviW^n' ihe ' lyoliivihia clifiti'k't wTiefiH triiH ftWMett tO enaiiye the headquarters of the company. Fort George was open to some objections, and another site was finally selected on the northern bank of the river, about a hundred miles from the mouth. At this point a new central post was establisbed in 1825, on a large and iwrmanent scale, called, in honour of the fan^ous navigator. Fort Vancouver. The new beadquarters uf the company were placed on the northern bank of the river, in order that it might be indisputably on British soil : there mis no probabditij, at that date, of the intercolonial boundary being established to the north of the Columbia. In March 1820, Mr. McLeod left Fort Vancouver to proceed eastward. He was accompanied by Mr. Edward Ermantinger, and Mr. Douglas the distinguished botanist. Tlie crew consisted of sixteen men, two of whom were Sandwich Islanilers. Tiieir route took them to Okanagan and Spokane. They asceui led the Columbia to Boat Encampruent, the river at the time being much obstructed by ice. The Mountains wt re crossed by the Athabasca Pass, then covered 'with deep snow, * and with much difficulty and some * " Dkkp Snow "—For four hundred miles below Boat Encampment tlie river in risinc: sprinjf nstant corn- facts, but of garded, but, ed, doing his CONTINUATION OF DEED POLL OF 182 1. From 1821 to 1834 no change was made in the relations of the said parties to the said Indenture and Deed Poll, but in the latter year, a reconstruction of the partnership was made owing to the fact, that many, if not most of the trade partners from the North-West Company, and some from the Hudson's Bay Company, had in course, and accord- ing to the provisions of the said Indenture and Deed Poll, ceased to have any actual interest in the associate " concern." That recon- struction — using the term merely in the sense of a supplemental con- tinuance of the original partnership of 1821 — was made atter due notice to, and in consultation with the Chief Factors and Chief Traders (said McLeod among them) then being, in accordance with article XXXVI, already cited, of the Deed Poll. The followi.ng was the resolution on which such continuance was based and made : Extract from Minutes " At a Court of Proprietors of Hudson Bay Stock, held at the Hudson's Bay House on Friday, the 7th March, 1834." '• Whereas the co-partnership created by the indenture of the 26th day of March, 1821, wasTTiefeDy agTeetf'To be continued for a term of 21 years, to end with the returns of the outfit 1841, has been some years passed dissolved (save and except so far as related to the 40 shares appointed by a deed poll of the same date and hereinafter referred to), and the whole of the partnership, effects and concern are and have for some time centered wholly in tlie Governor and Company of Adventurers of England trading into Hudson's Bay, and the trade and concern thereof has been and still is carried on by them exclusively and for their own benefit, save and except, and without prejudice to the rights and interests of the persons entitled to the 40 shares under the said deed poll : and whereas it is DEEMED expedient THAT THE SAID TRADE AND CONCERN SHALL BE CON- TINUED FOR AN UNLIMITED PERIOD." i 82 CHIEF FACTORS AND CHIEF TRADERS PAID ON SUR- RENDER TO CANADA. That '^ unlimited period" was continued until interrupted by politi- cal exigencies incident to the surrender on 19th November, 1869, by the Company to " Her Majesty, and for Her Majesty," " of all or any " {sic in the deed) *' of the ///«. 'f, territories^ rights, privileges, liberties, ♦• franchises, powers and authorities whatsoever, granted or purported to •' be granted by tlie said Letters Patent" (to wit : Charter of Charles II.) " to the said Governor and Company, within Rupert's Land — provided " that nothing in the said Act contained shall prevent the said Governor " and Company from continuing to carry on in Rupert's Land, or else- ** where, trade and commerce.'* That surrender — it is to be remembered — was solely, substantially, of the territorial rights or claims of the Company ; for as to the " lib- erty " and " franchise " ot trade and commerce to the Company, it was left unimpaired, to be used in common with the world ; and the princi- ple of monopoly was properly, legally, constitutionally, and in paramount political behest, ignored and tacitly denied. According to constitutional polity, it had become efTete. In 187 1, under circumstances which need not here be stated, the .company paid in cash and at once ;^ 107,055 sterling — say $520,287 — to the Caief Factors and Chief Traders then being, and holding their position, precisely and wholly, on the terras and conditions of the origi- nal Indenture and Deed Poll of partnership, of date 26th March, 1821 and continued by the deed, in the same sense, of 7th March, 1834, aforesaid, for an " unlimited ; oriod." That ;;^io7,o55 covered one-third oi the total amount, viz. : of the ;^3oo,ooo sterling received from Canada in full, and final payments of the said surrender with its conditions ; and the balance of the ;^io7,- 055, viz. : ;^7,o55 may be fairly presumed to have been for interest at five per centum per annum, as per Deed Poll aforesaid, on that capital of ;^ioo,ooo, from the fifteenth day of June, 1870, after the fourteen days from date (ist June, i860,) for annual accounting thereof to said partners, according to said Deed Poll. To make a full two-fifths (40100th), one-fifteenth more (;j^2o,coo stg.), would have been paid, but not having been so, was, presumably, conventionally compensated by the substitution of a fixed salary to these officers in lieu of the less ON SUR- ed by politi- )er, 1869, by f all or any " ;es, liberties, purported to Charles II.) I — provided aid Governor ,and, or else- substantially, ! to the " lib- ipany, it was id the princi- n paramount :onstitutional 36 stated, the ! $520,287— lolding their ; of the origi- March, 1821 March, 1834, T 33 certain " profits " of their trade, as afTected by the change in it under the surrender. In any case they — the Chief Factors and Chief Traders of 1871 received- -as a matter of right — their two-fifths^ out of the " gains and profits " of the " concern " of the year 1869 ; and that in these, of and for that year — as could not otherwise be legally done — the said land price, pro rata was included. The writer says " land price," for Can- ada bought and got only the land. The application of this fact, in the present argument, will appear further on. The writer may here, for the nonce, state that on this subject of settlement with the Chief Factors and Chief Traders of 1869-71, he speaks not from direct personal knowledge — but from thoroughly credi- ble sources, including the beneficiaries themselves, and from published public statements on the other side. As understood by him, and as stated to himself by at least one of these beneficiaries, the payment in question had a very intimate connection with this very matter of Oregon Indemnity. How, and to what effect remains for other dealing. ii ■i '\\ :.'}■ • ill '' Vl '.A , viz. : of the payments of f the ;^io7,- for interest at n that capital the fourteen ereof to said full two-fifths ■e been paid, compensated eu of the less 31 STATUS OF CHIEF FACTORS AND TRADERS AS OTHERWISE ADMITTED BY THE COMPANY. On this head, in supplement to what has already been advanced on it, the following evidence is presented : — TESTIMONY of Sir George Simpson, Governor, in America, of the Hudson's Bay Company, as reported by the Commons Committee of 1857, as to their territory and function. Question 703.— (Chairman)— I believe you hold an important situation in the administration of the Hudson's Bay Company ? Ans. — I do. Q. 704— What is it ? Ans.— I have been Governor of their territories for many years. Q. 70r).— How long have you held that situation? Ans. — Thirty-seven years I have been their p; incipal representative. Q. 706.— (Edward Ellice). As Governor the whole time? * Ans.— Yes ; I have held the situation of Hudson's Bay Company's Governor the whole time. Q. 707— ((."liairman). What is the nature of your authority in t'>at capacity? Ans.— the supervision of the Company's affairs ; the presiding ut the Councils in the country ; and the princijial director of the whole iuterioi" roanagement. i Q. 710— Wiiiit is Ut: nature of the Council which you have mentioned? Ans — Thy . i i.icipal officers of the Company, the Chief Factors, are members (ji 'council. If there is not a sufficient number of Chief Factors the number is made up by tlie Chief Traders, who are the second class of pa?'|'{e under discu;;iion. Q. 712. — Does the ultimate authority and decision reside in you solely, or is it with you in conjunction'with the Council? Ans. — With me in conjunction with the Coimcil. Q. 713. — Do you mean that they could outvote you and prevent your doing anything which you thouglit projier? Ans.— The]/ could outvote me, but it has never been sof : in the absence of the Council my authority is supreme f ; in travelling through the country, or giving any direction connected with the manngement of the business, my authority must be acted tm until it be annulled or disallowed by the Council or the Company, t ^ Sir Edward, the chief founder of the Colalition, knew that there waa a sliprbt exMgsreration in the statement, viz. : as to the time, which sliouid have lieen 3o or 31 years and also as to his being " principal representative." He was merely a salaried olncer at iil,20i per annum. t Scarcely true. Know facts to the contrary. M. McL. 86 D BY THE vanced on Q. 1261. What may be the Salary of the Hupprior officers? Ans.— The factors and traders have an intereHt in the trade ; they are partners. ■'-'•'■ EVIDENCE aJ rem of The RiKhl Houourable Sir Edward Ellice Baronet, M.P., P.C., a member <^( the Committee, examined as a witness. tx son's Bay as to their it situation y years. resentative. Company's ity in t'uit )residing at 2tor of tlie • mentioned ? Factors, are ler of Chief v'ho are the th the trade il as distin- nd vote up- you solely . ■event your jof : in the 1 travellinj^ ed with tiie ted on until [>an\'. t •■ was a sli^bt 3n or 3 1 yejirs iried officer at EXTRACT FROM REPORT. To question 5784.— Latter part of his answer which is essentially his- torical an«i .horoughly true. ANSWER. " In this sti^te of things." (after describing the prostrated condition of all the rival fur companies in the field, each in insolvency or verging on it, he proceeds to say : "I think about 1819 or 1820, Lord Bathurst, then Secretary for the Colonies, sent for me to consult nje whether it %vas ijOHsible to do anything towards promoting a unidii between the companies.* undertook the matter, not only at his reqiie«t.HWTt from obvious consider-"' ations of interest, having become under considerable engagements for one of the comianies ; and after a very difficult negotiation, I succeeded in uniting the interests of the varii)iis parties, and inducing them to agree to carry on the trade after that agreement under theCharter of the Hudson's Bay Company. At the same time I suggested to Lord Bathurst to propose a Bill to Parliament which should enable the Crown tr grant a /iccuw of exclusive />-(f(/e (saving the rights of the Hudson's Bay Compiiny over their territory f) " as well over thf country to the east, as over tliat bej'ond the Rocky Mountains and extending to the Pacific Ocean, so that any competition which was likely to be injurious to the peace of the country should l^e thereafter ]irevented. From the said different arraunement^hprniifi the jiresent IIiid>ion''s Bay Company, which is more in fact, a C anadia n than an English Compimy in its origin. ^ The Act thus passed, and under it the company have since carried on the trade throughout the Indian Territori(rf beyond their boundaries, exclusively by virtue ot the license. The license, granted in 1821 — renewed with sup[)lementary ])ro- visions in 1S38, and contitnied to 1S59, when it exp'- d by (.fflUVion, assumed British domain {Jv/fiinitiiii) from the Arctic si. ■' to latitude 42 degrees north, embracing the whole Columbia val . In 1825 " As he elsewhere exi)laiiis in his testimony before the Committee, his father iiad been one of the chief furnishers in goods and money, in Canada (Montreal) to the Fur CoinpanjMi distinfjriiished asthe".X.Y, ' Company, with Sir Alexander .McKen^.ie and other Canadians at its h nd, sul)8equently incorporated with others in the same trade and trade field as the North- West Com;iany. That on the death of his father he (Sir Edward) succeeded to, and took up that interest— a large one. M. McL. \ Limited acconling to their Charter, to "AH the lands and Territories ujwn the " Countries, Coasts and conflnes of the Seas. Bays. Lakes, Rivers, Creeks and Sounds, in '• whatsoever latitude they shall be, that ly (sic) ii-Hhin the cnirmice of the streighta CO ' 'monly called // "'/< n ',-■ Stl•riilllt.^ " " and that the land be from thence reckoned anci reputed as one of our Plantational Colonies in America, called liuiiert's Luna." (Aii; liter- ally) in the Charter. Clause 9th. M. McL. II 1I n 1 1' If i . 1 \ »»! 36 under treaty with Russia, there was a modification as to the region since known as Alaska, where the Company traded and had permanent trade posts. Immediately after that treaty the company — under the new arrangement ia-c owditi o n — carried on an " exclusive trade " with the Indians even in Alaska, far north and west as Cross Sound, under lease from the Russian Fur Company ; with whom their relations Were — af er the treaty — ever amicable. The local centre of all this Pacific Slope and Pacific Coast and Ocean Trade, extending from Yukon and Sitka in the North and North-VVest to San Diego in CaUfornia, and, in the same connection far Ocean-wards as the Sandwich Islands was, in 1822-24, at Fort George (formerly Astoria) at the mouth of the Columbia ; and after that, For: (and Port) Vancouver, about 90 miles farther np, on the north side, within tide water. In view of this fact, the cession^ under the Treaty of 1846, quoad the trade and its, so called, and empb^ti'jally admitted possessory rights, of the associated British Trade Companies in question, was, practically, C the ivJiole vast and then ext.eedingly profitable trade — Inland, Coast, and Ocean, — of that land and sea — the richest in the world, so far as the writer knows, and whereof, having seen, he can attest." . That fact is a material one in arriving at the proper estimate of the Indemnity in question, and in determining to whom the same is due. The Treaty practically destroyed the Trade ; or, at least, so curtailed it, and so hampered its operations — rendering comparatively useless its expensive ships and coast craft, including the first steamer vessel in the Pacific — 6« as to allow little for profit in the concern, and actually, as the annual accounts to the Chief Factors and Chief Traders in question rendered showed, reducing " profits " to scarcely living wages — in the case of Chief Traders, with their only " t, ships, and trade posts, &c. ; waste of goods, &c., thrown out of the trade by the sudden contractions of its field of work ; and worse still, by the ex- tremely new penurious and even wrongful charges by the company, in London, against tlieir partners in America, if the very food — food of the wild — necessary to the children of these ame " Chief Officdrs,'' as, at least, was the case, with the writer's fathi ' in latter years, the poor Traders' balances grew gradually less, till m >ny, who could, abruptly left the service to try elsewhere, their fortune, o/ live elsewhere in some w^ mon since lent trade the new with the nder lease ere — af er cific Slope and Si'd'a d, in the Is was, in th of the 90 miles this fact, , so called, ed British ? vast and 1, — of that nows, and iiate of the ne is due. :urtailed it, useless its essel in the actually, as Traders in ng wages — ■ I," certainly s rendered ships, and ide by the by the ex- :ompany, in d — food of fifircrs,'' as, rs, the poor d, abruptly ^re in some 37 comfort, while the? a who, from long habit in the country and trade, and with large familie? could not do so, had to submit to the ever [grievous burden of increasing cares and diminishing hopes of peace and comfort in the evening of life. Thus suddenly, into his grave, still in harness after nearly forfy years of such service, dropt that " Veteran Fur Trader " as the historian Bancroft calls him, in his " British Columbia " — " John McLeod " "H .B.C.'" Ift's balance as per such account,'4»ad, without any extravagance on his part — for his habits were ever simple and temperate — was a paltry one thousand pounds or little more, with little else between his widow and her little ones — girls mostly — to save them from starvation ; and that in a world of strangers ; for by the rules of the company, no Factor nor Trader, or his family, could without special permission, live on "their territory" on leaving the service. On this point — one that applies more particularly to that dass — " second class," as it has been termed — of trade or " wintering " partners, much more might, with propriety, and in common justice be srid in the present argument- Constituting, as a class, the operative founders and chief promoters of the enterprise in question — one of national emprise in import — they, of all others in it, are best entitled to, not only fair, but to even preferential consideration. As a class, in the times in question, they were un- doubtedly under-mid. With the Chief Factor, with his double share, it was otherwise. He had no more strain on his means; no higher life to maintain. All — as Sir Edward EUice in his evidence before the committee of 1857, most thruthfully said — were ' ^"ntlemen" selected as such, for the service — one essentially militant and guber- natorial — kings among savages — generals and governors among white men in arms and "rliuggle a oiitrance — so, in those early times, in battle ever was it. ia the far wild lands. Evidence — Continued — of Sir Edward Ellice, ad rem, before Com- mons Committee of 1857. Question 5791. — Will you have tlie Koodneas to state to the Committee what was the constitution of the Company after the union ? ^^ns. The agreement for the partieipc'tion of the new Company was, that the Canadian (Jompanies whose interests had been before ^ united, and the stoclcholders of the Hudson's Bay Companj sliould Tiave, as nearly as possible, equal shares. It was then necessary to cpnsider the interests of the gentlemen in the interior loho conducted the trade on both sides ; and it ^vas decided that whatever profits shoulu arise from the trade carried on by the Eludson's Bay Com- pany, for the joint interest of the parties, should be divided into 100 shares, and tluit 40 of these sliares shotdd be allotted to the rjen- 4 i ■X-w., 38 ^. tlemen in the interior vho commanded the Posts, and superin- 'y^ tended the general interests of the Company, but who supphed no capitalT It was provided that a certain number of these shares should he given as whole shares to the higher rank of servants, if they may be so called. Chief Factors, and that half a share should be given' to a certain number of gentlemen in the immediate rank below them called Chief Traders. Question 5793. — Is that the system upon which the trade of the terri- tory has been conducted up to this time ? A.ns.— That is the system under which the trade has been conducted from THAT TIME TO THIS." STOCK OF THE CAMPANY. X On this sahjpct, in answer to quvistion 5802, this most authoMtive witness (Sir Fdward EUice), says : " The stock of the Company, at the union, was _;^4oo,ooo — since increased by money and profits carried to stock, to half a million, at which it then stood." STATEMENT BY THE WRITER as to this matter of " Stock." In the case of the Canadian Companies it was entirely made and based on the proHts of the trade. Their prin- ciple of partnership was service^ on capital, principal and interest, charged to the partnership in the trade ; which partnership was on the principle (French Canadian), of *'■ Commandite^* in which the total liability creditors is, jointly and severally, in persons named and publish ; : -» that effect. These, in the present case, would correspond wi i i •; " Stock " proprietliry of the Hudson's Bay Company. This Stock proprietary, Canadian and British, is, perse distinct from the 100 shares aforesaid, which represent the whole " Concern," and all its property, real and personal, and franchise, in, and for the trade in question ; and for winch alone, in its terms, the Charter of Charles II. was granted to " The Adventurers of England trading into Hudson's Bay." The Canadian Company jr Companies — self-constituted under the common law of their country (Lower Canada) — were in t , same and a wider field in the same or like objective interest. Ai. .r the question of strict legality of such a combination, on grounds ot / ■>lic policy, that is not in the present case. As to all the parties in the " arrangement " (as Sir Edward very correctly •.•?chnically calls it), "legal or not," ^»(7<7ikc rties m the Is it), "legal ty their own he Imperial Treaty itself H9 cover the question of public policy, and, incidentally, they cover all per- sonal right in that relation. Coming back to the matter of Stock. It is to be observed, i. That it is proper, nominally, solely to the 60 shares aforesaid. 2. That as to the Canadian share (by far the lar);er) in it, it is solely, the result " gain and profit" of the trade in question. 3. That as to the Hudson's Bay Stock, proper, it, also, is entirely of the " profit " of trade in question, with the exception of two small sums, one of ;^io,5oo paid in some time before or about 17^ not for the frad^, but^to nominally increase, to a treble amount, their market stock of the day ; and also another amount of only £3,100, (three thousand one hundred pounds sterling) for like purpose, and which, possibly, is the " money " so imputed, re- ferred to by Sir Edward in his answer just cited. The Trade did not benefit from such outlay ; and makes no claim to it — though, in fact, the Trade made the stock and its ** rise " — the vvhole of it. These statements are made as to the Stock and Trade Shares in question as they stood at the time of sale and transfer, viz. : on or about ist July, 1863, by the "Old Hudson's Bay Company" to the ** New " and present Hudson's Bay Company — so called. In the present '^ase there is no claim to such stock or any part of it, ncr to an iota of what the *' New" Hudson's Bay Company of July, 1863, aforesaid — the present one — acquired by its purchase and pay- ment, in cash, to the so called *' old " Hudson's Bay Company. The subject of the present claim (Orepan Indemnity) was not in the Bill (of sale) as made and agreed on between the said pa>'ties, viz. : the Hudson's Bay Company, as amalgamated on v6th Marc'.i, 1821, and the " Inter- national Financial Society who boughi »her.i out. The facts on this point are clear, and well known to the present Companv;and incontest- able. Let us glance at them briefly. ned in, and par- :tu(liiig about or lillivrays (Simon kV. C, creditors, le purpoxe. fiiy— creditors. Hi lied such part- M. McL. 40 BASIS AND SUBJECT OF PURCHASE, BY THE NEW . COMPANY. According to the Prospectus issued to the public by the New Com- pany at the time of their purchase (July, 1863), ^"d stated on 2nd July, i86^v ^'^ the late Duke of Newcastle, as Colon'al Secretary, in the House rds as reported in the London Times of 3rd July, 1863, the total ; ohase money was one million five hundred thousand pounds sterling (£1,500,000 sterling.) That, according to the official letter of the delegates (Sir George Cartier, and Hon. W. McDougall, C. B.) of the Canadian Government, to the Colonial Office, in February, 1869, in concluding the negotiations for the surrender aforesaid, * tht Bill of Sale 2l^ made up by the ^^ Old ^^ Company and accepted by the New was as follows : " I. The Assets (exclusive of Nos. 2 and 3) of the Hudson's Bay Company, recently and specially valued by competent valuers at £1,023.569 2. The landed territ iry (not valued) 3. A cash balance of 370,000 £^,393.569 " The deficit, and blank for "landed territory" was therefore £106,431. That small sum could not, reasonably, be assumed to cover, or apply in any measure to the *' Hudson's Bay Territories " proper, " Rupert's Land," the company's claim as to which, in absolute free- hold, was emphatically denied by the Canadian Government, and not then, (2nd July, 1863) admitted or sustained by the Imperial Government, but left in abeyance. There were, then, lands of great value, on the west side of the Rocky Mountains, which, some years before, had been bought by the Hudson's Bay Company from the Crown, amongst 3,080 (three thousand and eighty) acres since forming, or m- cluded m the site of the City of Victoria and Harbour of Esquimault, B. C, and ever entered and accounted for in the general fur trade accounts of the Company. Such asset might well amount to the £106,431. As to what was included in the first item (£1,023,569) of the ' above " Bill of Sale," we have an authoritative statement in the official report ad hoc to the Government of Canada ad hoc in London, England, viz. : the Hon. George Brown, a member of that Government in 1865.! * Sessional Papers, Canada, 1809, No. 2S. t Journals, Legislative Assemljly, Caniidn, 1805, Vol. 25, p. 48. i- p: 41 r EXTACT FROM SAID REPORT. " I drew Mr. Cardwell's attention to the fact, that the prospectus de- clared that the assets of the New Hudson's Bay Company, exclusive of landed territory, had been recently valued by competent valuers at £1,0^.569 sterling, and that these assets were further explained to consist of ' goods in the interior, on shipboard, and other stock in trade, including ' shipping, business premises, and other buildings, necessary, for carrying ' on the fur trade." I pointed out that in addition to this large amount of convertible property, ' a cash balance.' derived from the old Hudson's Bay Comjiany was spoken of in the prospectus ; and that other large landed possessions, besides those in the East of the Rocky Mountains and North of the American line, were thus set forth in the prospectus as bei.ig part of the property purchased by the new company. In addition to its chartered teri'itory, the Company possess the following valuable landed property : several plots of land in British Columbia, occupying most favorable sites at the mouths of rivers, the titles to which have been contirmed by Her Majesey's Government ; farms, building sites in Vancouver's Island ; and in Canada, ten square miles at La Cloche, on Lake Huron, and tracts of land at fourteen other places. In addition to all this, I directed Mr. Caldwell's attention to the fact that the Hudson b Biy Company held a claim against the American Government, and which wastt that moment under consideration by arbitrators, for the surrender of theii rights on the Pacific, south of the boundary line estab- lished under the Oregon Treaty. I stated, on information that had reached me, but without personal knowledge of its correctness, that the American Government had expressed its willingness to pay oae million dollars for the extinction of that claim, but that the company rejected it, and were in expectation of receiving a much larger amount." It may be here stated that in or about August 1867 — or about then, four years after the purchase — the final award, under the Treaty, was " J^our million dollars to the IIudsoii!j Bay Compatty,''' eo nomine, and besides that, one million one thousand dollars to the Puget Sound Agricultural Associaiio}r-,vi\\\c\\ latter claims had — previously — between July, 1863, and the date of the award — been speculatively bought up by certain parties at one-tenth their face value, in principal, and trans- ferred — on what terms is not known beyond the inner circle of the transaction — to the Neto Hudson's Bay, who, as admitted by their own official response (by their Secretary) of date i6th November," 1865^ the enquiry on the subject of Messrs. Robert S. Miles, William Sinclair, George Barnston and John Swanston (all retired Chief Factors of the Hudson's Bay Company, personally and privately, like the aforesaid John McLeod, holders of stock in that Association), and which stock, since 1837, had ceased to yield any dividend whatsoever. Deceived, like these gentlemen, in the matter, and hopeless of realizing thereon, other- wise, the writer as administrator of his father's estate, sold out \r-- five shares (£500) for one-tenth, viz. : $250, That was in August 1863. But that apart. •^ \ 42 The present claim is only on the award to the Hudson's Bay Com- pany — /./ est — Company as it was at the date of the Treaty ; according to the text of that document as being and having been " already in the ** occupation of land or other property lawfully acquired within the Territory " (in question), " south of the 49th parallel of latitude." THE NEW HUDSON'S BAY COMPANR (of 1863) NEVER BOUGHT OREGONj^AfiVVv/VuS^ INDEMNITY TO THE " OLD " HUDSON'S BAY COMPANY (OF 1 846). This appears in every aspect of the case, and especially from the following standpoints : 1. The treaty determined the facts and relative rights and positions of the pai''"ies and all persons inciden-tally therein concerned, as they then were, and had been up to the date of the treaty. Its terms and tenor specifically state so. 2. That as to indemnity it was not, in any degree or sense prospec- tive, but retrospective, as to its subject and purviews. 3. That the matter Of amount of indtmnity — as before said — was necessarily one of enquiry with unavoidable delay j but that it was a mere assessment, enuring to the parties to whom, at the date of the treaty, the right of indemnity accrued, fully and finally. 4. That the subject of it being, by it, taken, entirely, absolutely, and at once, out of the " possession " and jurisdiction of the Hudson's Bay Company, and of Great Britain itself, and appropriated wholly, and solely, to the United States of North America — a foreign nationality — it could not. after the treaty, in the nature of things — ratione ret, et Juris — belong to, or be under the control, in any sense or way, of that company or of any subjects of Great Britain. That the company being itself but the creature of an English Royal Charter, could claim no more as to such matter th. n any British subject or the British Government itself. 5. That by and in virtue of the treaty and in accordance with the special terms and organic conditions of the Indenture and Deed Poll of 182 1 aforesaid, as continued by Deed Poll of 1834 af(jiesaid, the indem- nity in question, in its integrity, accrued to the said company as then -r 43 beini^, in its several distinct parts ; in its several personalities j in its several constitutent entities — by devolution of estate, on death, as it were ; for, from the moment of Treaty, the matter of it, viz : the " possessory rights " in question, became nil to the company as a company. As a corollary, they, as a company,^poiild claim nothing in a proprietary or beneficiary sense, from i^^Necessarily — for proper collation and pay- ment to the several partitioners in such estate — the national award had to be paid over to the company — not for j^^ appropriation — but simply in trust, for distribution according to their respective rights of these several beneficiaries. 6. That this, or the like, seems to have been the view of the matter by the " old " Hudson's Bay Company, as appears by their answer some three months before their sale to the " New " (the present) Hudson's Bay Comdany, to the letter, in enquiry as to the proposed sale, in rela- tion to the rights of Chief Factor'! and Chief Traders in the company. The subject of enquiry then was not, specially, that of indemnity — Ore- gon Indemnity, alone — but included the larger one of all rights, terri. torial as well as trade, on the surrender in question. The correspond- ence on this subject was included, with other papers, in a memorial (without date, but evidently •diffivthe sale in July, 1863, in question) by certain retired Chief Factors, viz : Robert S. Miles, William Sinclair, James Anderson, George Barnston and John Swanston, to the Right Honourable Mr. Cardwell, Secretary of State for the Colonies, in advo- cacy and defence of their interests. The memorial is too long for pre- sent citation, and it may suffice for the present point, and in explanation of the immediate ground for the memorial as applicable to the present argument to give the following extract from it : EXTRACT.* Clause 5. In the pi'esent state of selling and exchange of the Hudson's Bay Company's affairs, we consider it required by justice, likely to nrevent evil, and tending towards a wiser course to place our interests under the immedi.te protection of Her Majesty's Government. We feel assured that better consideration wdl be had from it than from any Board in Fenchurch Street. The old company sold their '' perpetual succession." and us along with it suddenly, and without previous notice to the Governor or to the Trade, and by that act introduced a most disturbed state of feeling and business." " 6. We would have apprized the late Duke of Newcastle of this danger, hut a lett r of assurance from the old Board, of tchich copy is herewith en- closed, lulled us into security, and enabled that concern to compass its pur- pose without representation on our part." * Return, printed on address of House of Commons, Canada, 18th November, 1807 Sessional Papers, Canada, 1st Sess., Ist Pari., 1807. ( 44 copy of said letter. " Hudson's Bay House, London, 27th February, 1863. Gentlemen — I am directed by the Governor and Committee to acknow- ledge the receipt of a memorial (forwarded through Mr. Chief Factor Barn- ston), dated Montreal, 28th January, 1863, under date 7th February. In reply, I have to state that communications have passed between the company, on the subject of the surrender of the whole, or a part of the lands held under the charter ; but that it is utterly at variance with the facts of the case, that " the only question remaining unsettled is the amount " of indemnity to be paid for the surrender." On the contrary, the Gov- ej'nor and committee have reason to believe that Her Majesty's Government have no intention of prefering any vote in Parliament for such a purpose. The Governor and committee are at a loss to conceive how the interests of the commissioned officers of the company can be considered as unrepre- sented, and I am tlirected to express their surprise that such a statement should have emanated from gentlemen who have been so long connected with the service and who ought to be satisfied ; that nuw, as ever, the Gov- ernor and committee consider themselves equally bound to protect the inter- ests of the Fur Trade as those of the proprietors. The Chief Factors and Traders, whether on the active or retired list, may rest assured that should any surrender of the chai'ter be made, of which, at present there is not the least probability, their inti-rests will beat least as carefully pi-otected by the Governor and committee as they could be by any arrangements such as are shadowed forth in the memorial. In all the communications with the Colonial Office, in the evidence before the Committee of the House of Commons, and in any declaration made in the two Houses of Parliament by aay friends of the company, it has been invariably stated that should the company surrender their char- tered rights they would expect compensation for the officers and servants as well as to the proprietors. Under these circumstances the Governor and committee, while admit- ting the rights of the memorialists to make enquiries as to regulations sup- posed to affect their pecuniary interests, cannot refrain from expressing their regret, that in the present instance they should have affixed their name to this document upon anything so unreliable as mere newspaper reports. I am, &c., Thomas Fraser, Secretary. George Barnston, Esq. Wm. Sinclair, Esq. John Swanston, Esq. James Hargrave, Esq, Robert Miles, Esq. James Anderson, Esq. In another letter, published with the same Parliamentary Return, on the same subject, we have, from the same quarter, viz. : the Chief Factors on the retired list aforesaid, the following explicit statement, not only as to their claim on the surrender in question, or contemplation at the date of the letter, but on the Oregan Inc ,:i.nity also. Y, 1863. acknovv- tor Barn- ween the It of the with the e amount the Gov- vernment jjiupose. interests unrepre- jtatement jonnected the Gov- the inter- itired list, made, of will be at hey could rial. evidence eclaration mpany, it heir char- 1 servants lile admit- tions sup- expressing 3xed their lewspaper crefary. Return, he Chief merit, not plation at 45 LETTER OF CHIEF FACTOR, ROBERT S. MILES, TO A. GOVERNOR. H. B.C. O. DALLAS, ESQUIRE, " Brockville, 14th August, 1867. Sir,— I am in receipt of my account current from the Hudson's Bay House, of date 1st June last, and am somewliat surprised at not receiving tlaerewith any communicHtion respecting the proposition made bj' you when in Brockville two years ago, in your capacity of Governor in Chief of the territories and settlements of the Hudson's Bay Company, for the final settlement by them with the retired officers of the company, which by you, was thought desirable at that time from the various changes that would and must occur under the new arrangements of the concern. The proposition agreed upon ami accepted by us, to be made was on a last ten years average of the one eighty-fifth dividends of the concern, which, commencing with the outfit, 1853, and ending witl; the outfit, 1802, give £4|f8.5s. 6,7^(1. The transfer of the company took place in 1863, and whether you wait for the completion of that outut to commence with out- fit 1834, and end with the outfit 1863. by the tenor of the first dividend of 1863, and taking into consideration the returns which must have remained in the South from the loss of the ships, the result cannot vary much from this statement, viz. ; £. S. D. Outfit 1853 33.5.12.3 do 1854... 690.18.2 do 1855 872.10.1 do 1856 339. 9.5i do 1857 479. 3.9 do 1858 475.15.01 do 1859 259.11. 3i do 1860 248. 1.8 do 1861 207. 8.6 do 1862 353. 5.1 Ten years £4,662.15.3^ Average £4i6. 5.6} I therefore, as also do those of the undersigned officers, who have re- quested lue to write to you thereon, wish to know, without reserve, if the company close with us on their terms. When the country on the West side of the Mountains was claimed under Treaty by the American Government, the Northern and Southern Councils were advertised by our depar:ed late friend. Governor Sir George Simpson, that a claim of one million pounds sterling would be m de on that Government for the posses-sorj' rights acknowledged by the Treaty, and tlijit x\\e propovtiov thereof n-onld accrue to the commissioned officers conformable to their interests. We now see that the claims of British Companies on the American Government have been awarded as follows : — To the Bay Company .$4,000,000, and the Puget Sound Agricultural Company $1,100,000. v We therefore beg to submit that our claim onthe former is not cancelled by the transfer of the old conqjany to its present possessors. In reference to the affairs of the Puget Sound Agricultural Company, those of us who held stock in that concern, and from its commencement o-dy received two small dividends, rested satisfied that the agents there appointed bj- us, or their successors, would see us righted under whatever settlement the United States Government would make. When the S4^ 46 Secretary of the Company ' asked us to dispose of our shares at nar without interest, t we think he should at the same time not have kept us in ignorance of the claims that would be submitted to the American Government therefor ; and we are surprised we should have been treated in this ambiguous manner, after tlie solicitude hfld out by the company at the period of its formation, of which I have copies in my possession. The Secretary of the company, however, has now, our stamped receipts which at the same time, we look upon as a most illiberal transaction by the indi- viduals that took this ingenerous advantage of our position. The late Directors were very indignant (vide their letter of the 87th February. 1863) tliat the retired officers should have ever considered them unmindful of their interests, and even went so far as to tell us that there was no idea of a transfer of the concern being made ; how these assertions have been verified the present company can tell. You are still, Sir, connected with the company, and I await an early reply. , I remain, &c., A. G. Dallas. Esq. Robert S. Miles. We the undersigned subscribe and concur with the expression of the sentiments hereinbefore set fortii in our behalf and at our request. William Sinclair, George Barnston. John Swanston. ^ Other Letter in Said Return. " Hudson's Bay House, London, 16th November, 1865.^ Gentlemen — I am directed by the Governor and committee to acknow- ledge receipt of your letter of the 26th October, transmitting copy of a letter addressed to Mr. A. G. Dallas, on the 14th August last by retired Chief Factor Miles, to which, you say you have received no answer, and which you now submit to the Board, and request a distinct and early reply. Meauins Secretary of the Hiidaon '8 Bay Company, for tlic enterprise was -as Sir the Commons Committee of 18.')7— an " off-shoot " of that George" Simpson testirted before company, and was inlcuded in its annual accounts with Its partners M. Mc;L. t This Pui?et Sound Annrultnrnl Association— such was its name--^i[as got up for general supplies of food---cereal and animal, tfrain, beef, tallow, pork, &c(fyBussian and American Cloast Trade as well as for the Fur Trade ofthel. B.C. It was >,'ot up at the Instance of the Hudson's Bay Company, but was an enterprise apart from that company. It was started at a capital of e'J^to.O'io sterHn>r, in shares of £in(i. Ten per cent l)aid on subscription. The principal subscribers and promoters were Chief Factors an(i Chief Traders, who had had some experienct; in the F.icitic Slope, amongst them the writer's father. As appears by examination of bis back annnal accounts current from tlie Hudson Bay Company, in which this item was included, the only dividends ever paid them---the stock holders was---a8 Mr. Miles says, "two small ones," viz : at its commencement. These wem only 5 per cent, per aniuunon the nitr.ti-nth paid up, and which .Mr. Mile.s refers to as "par "---meanins; par onamount /i«i,fy limited discretionary power, in that way, is left to me. The [)osition I feel it my duty to take is, that the indemnity in question falls, properly, under tiie head of " clear gains and profits of the concern ;'' that it accrued ni the date of the treaty ; and that the totality of the " 40-lOOths " of it belonged to the Chief Factors and Chief Traders of that body then being, and to the " retiring interests" of such partners, accord- ing to the terms and provisions of the Deed Poll of 1831, in force (by con- tinuance) at the time, viz : in the proportion of ^^g for each Chief Factor and ^ for each Chief Trader. I have the honor to be, Gentlemen, Your very humble servant, Malcolm McLeod, Admr. estate late John McLeod (senior). Chief Trader Hon. H. B. CT,' Answer. " Hudson's Bay House, London, March 4th 1868. Sir, — I am directed by the Board to acknowledge the receipt of your letter of the 8th ultimo, and to inform you in reply that the subject will receive due consideration when the company's c^laims on the American Ooveanment, under the Oregon Treaty, are settled . I am. Sir, Your obedient servant, Malcolm McLeod, Esq., Buckingham, County of Ottawa." Jno. G. Smith, Secretary. The italicization of " due consideration " is, by the present writer. Evidently, at the time there was no intent of repudiation. It would be hard to suspect for a moment, that a body of gentlemen — successors of iife< one of the (1 8o to the ite will be t awarded, Ison's Bay formerly, Montreal. ty. I was ig the pre- Ooinmons of opinion irt though, 10 claims I »f the case. id the cost nly, if not iiig in 18-il> , only two ry limited n question concern ;" ity of the era of that rs, accord- ce (by con- lief Factor (senior). H. B. cr; 4th 1868. pt of your ibject will American H, ?c/ etary. jnt writer. would be icessors of 49 Prince Rupert and his noble co-corporators of the Royal Charter which gave them name, and corporate existence, deliberately intended tlius " to make promise to the ear, and break it to the hope." Not thus was it with the o/d Hudson's Bay Company- -than whom — Canadian and English — no more honorable a body of men ever walked this earth ; and to whose character in this regard; with all men ^civilized, and savages, is due, most largely, their conquest of Northern North America from Ocean to Ocean, from Mexico to the North Pole. But to proceed with the argument. In these somewhat extended extracts — but unavoidably so — from the correspondence and record of negotiati is in this matter, the writer, would for the present, point to these two incontrovertible deductions, and facts, in fact, viz. : (a) That the " old " Company in entirely ex- cluding^ in their Bill of Sale to the new, the item and matter of Oregon Indemnity, considered that it had ceased to be, or that it had never been, an asset of the Company^ per se, after the Treaty ; but from the date of the Treaty, and as the immediate efTect of it, in, at once destroy- ing the trade^ throughout the region in question, and thereby, to that Trade — and nothing else — causing immediate teal loss — accrued, at once, to the several parties, in their individualities concerned in it. The Treaty is, specifically in that sense, and although the name *' Hudson Bay Company " is used in it, it is so — sub modo — in the sense of a trust or agency, merely. (A) That what was due to, and really belonged, in determined right, to the partners — trade and " proprie^ " — of tne company in 1846 could not, in common sense, not to say reason, law or equity, belong to trade — totally different — of 1868. Such a violation of obvious right cannot be covered, legally, or in common ethics by any " Counsel " however " eminent." It was not — is not — a question of Imo^ but simply of meum and tuum absolute, and not of debt as between debtor and creditor. To proceed to another point under this general head of non- purchacc, by the New Company, of this Oregon Indemnityf,9eve»tl% : Rebates, &c. 1 viAij . The Ne7v Company bought, as aforesaid, by a cash payment of one million and a half pounds sterling. They forthwith put the whole on the London Stock market at two millions of pounds sterling in 100,000 sharss of ;!^2o each. On these up to 1886, an aggregate rebate of £,1 50 per share was paid : making a reimbursement of ;^7oo,ooo out of the ;^i, 500,000 of original purchase money. Add to that (\i not included in the ,£700,000) the ;^3oo,ooo sterling received on the surrender of 1869, and we have a balance on that of ;;^5oo,ooo. But in this, as per bill of sale aforesaid, there was a "cash," " in hand," item of ";^3 70,000." That bft an actual cash outlay of only ;^ 130,000. Covering this we have — as adr^'tlcd by themselves — the one million sterling — or, as stated in American currency, four millions of dollrrs to the Hudson's Bay Company, and one million one hundred thousand dollars to the Puget Sound Agricultural Association bought up, " in a wry," as already stated, for one-tenth — a clear gain of one million dollars on this last item alone. Add to that the valuable city building sites, and other most valuable selected lands in British Columbia, worth, probably, at least, another million p'^ands for the localities where held, viz., city of Victoria, Port of Esquimauit, Port Simpson, Kamloops, and other interior fast rising city and town sites, arc, estimatively, the most valuable in the Dominion of Canada. Finally add to that the enormous grant of land on the " surrender," VIZ., " 45,160 acres " of trade-post sites, including " 500 acres " of tlie most valuable part of the " city of Winnipeg," worth at least, twenty five millions of dollars, " 500 acres " at and about " Lower Fort Garry," worth, at least, two millions of dollars, and " 500 acres," at " White Horse Plain," clore by Winnipeg, worth, at least, another two millions of dollars ; and last, and certainly not least, the " one-twentieth " of all that peerless whjat field of the world, from Red River, Lake Winnipeg, to the summit of the Rocky Mountains (700 miles) with nn average breadth of ?xy 400 miles — an aera of 280,000 square miles, say 180,- 000,000 acres ; one-twentieth of which is nine millions of acres, worth, at present local values, at least twenty millions of dollars. Besides that they have the whole ** trade plant," including ships steam and sailing, yalued> mutually, by the respective valuators of the two companies (old and new) at ;i^i,023,569 sterling. That stock— practically rebated in full, and far beyond— stands to dqrt in London's Money Market, at a premium probably unequalled in the couits of Mammon, past or present. This statement, astounding us it may seem, is itrictly within public record. As co the internal matters bearing on this point of rebate, I r lUt of the t included render of his. as per ;37o,ooa" g this we ig — or, as Hudson's irs to the as already i this last ther most at least, , city of and other the most urrender," s " ot tlie St, twenty )rt Garry," t "White millions :th " of all Winnipeg, n average say i8o,- es, worth, esides that id sailing, companies lly rebated Market, at on, past ur thin public of rebate, I 51 would refer, as to incontestible authority, to the admirable, and most thoroughly correct work of Sir Edwarc W. Watkins, Baronet, under the caption, " Canada and the States," published in 1887. The subject of rebate is given by him in page 128. The whole work, especially his chapters under the heads, " Negotiations for Hudson's Bay Property," and " Re-organization of Hudson'i; Bay Company," is, from his own particular standpoint in the matter, essentially authoritative on the sub- ject, for his was a leading part througl.out the whole negotiations, and he gives the iacts with a candour and liberality which commends itself to general regard. According to his statements, and there is no reason to doubt them, he was the first to organize the Syndicate of American and English capitalists to solve the problem arising from the refusal of the British Government to adopt the earnest advice of its Secretary for the Colonies (the Duke of Newcastle), supported by the elder Baring (Lord Wolverton), to expropriate, out of the national purse, the terri- tories in question, to national behest. The task was an extremely dif- ficult one ; and unfortunately for the poor worthy traders in question they had no special advocate to see to their particular interests in the controversy. They, in the >'ay indicated by the memorial to the Right Honourable Mr. Cardwell, as Secretary of the Colonies, already alluded to, made an effort in that direction, but, seemingly, with no effect. In like interest, in advance, the writer, personally, on 5th June, 1862, ad- dressed himself to His G»ace the Duke of Newcastle, with better effect for it was at once acceptively responded to, as may appear from his speech in the House of Lords (4th July, '62), as reported in Hansard Vol. 167, pp. 1409-11, and which really l \rted the movement in ques- tion. The writer holds His Grace's per ;onal acknowledgment of the service, and his immediate action thereoii was his response to the appeal. Having thus gone over the whole ground of the matter, the ques- tion suggests itself : How did this " New Company " — so called — ac- quire the treaty rights in question, of the Hudson's Bay Company as then being ? According to their own title, indenture and accompanying schedule of assets, the subject was very properly, not included. The omission as not a mistake, accidental or otherwise. AH the res gestae of the t ansaction precluded that idea ; the price given emphatically ignored it ; it was not in their bond at all ; was riot an accidental accre- tion, for it was something finally determined as a right seventeen years before t' eir purchase ; a right, a thing — not then in the power of the ti'i ,!j :'* 62 : i;j-'i company, as a company, to sell. From the organic agreement of that company, it had bocome singu/a singulis, the particular, private, per- sonal property of the constituent members of the company as then, at the date of treaty, being. The old company, jointly and severally, took that stand in the matter, throughout. In domg so, the old stockholders knew they were acting in the spirit as well as the letter of their bond with the trade partners, in whom — as they ever gratefully, practically admitted — they lived, and moved, and had their being as a Fur Trading Company of Northern America. Some of these old stockholders may be in the new company, but it yet remains to be learned whether they repudiate their traditions in this regard. They certainly cannot well be suspected of suggesting any doubt on the subject, and sheltering them- selves under the cover of an ex parte, " legal opinion " of thetr own " eminent counsel." "r — LAW OF THE CASE. As before observed — the present is not — or, at least, should not be — a case for the courts of law, or even of reference to " eminent counsel," for the facts and the words of the bonds, as clearly expressive of the consensus ad rem oi the parties in the case, speak for themselves. In such case, the formulated agreement of parties, while within the bounds of public polity — as in the present instance — makes and deter- mimes relative law and right in the matter quoad the parties. In this sense, under the Original Indenture, and Deed Poll of partnership of 1821 as continued in 1834, loan "unlimited period," the award, became — I repeat — the actual and personal property of each partner (trade or " proprietory " so-called) in the measure of his " share," from the moment of the passing of the Treaiy, aiid in case of his death before payment thereof, devolved to his succession. That — as the writer contends, and as the venerable; and intelligent Chief Factors above named hav > so unanswerably urged — is the indisputable law and right of the case. It was competent, of course, for those gentlemen, to go into the courts about it. That they forbore from doing so, is no derogation to their right. Pending assessment : lulled by old and recurrent assurances, they waited, till, in course, they died, leaving — some of them in scant poverty — widows and orphans to gather thereof, as best they might. To these — in their poverty — the courts of England, in such a matter, against such a power as the Hunson's Bay Company of to-day, with its grasp of millions untold, arc inaccessible. The challenge is a mockery. 53 . ,,( CASE IN POINT. In the whole record of judicial procedure — so far as the writer knows ; and his readings professionally, French as well as English, in that line for over half a century, have been almost exceptionally large — there is not a single case — he ventures to say — exactly in iis details in point. But there is one case in which on the same original indenture and Deed Poll, i nd between the same or like parties, an issue of relative rights in question has been finally decided. The report of the judg- ment appeared in the London Times of 27th February, 1868. REPORT {London Times, 27th February, 1S68). {Before Vice- Chancellor Sir W. F. Wood.) MacTavish et al. vs. The Hudson's Bay Company. "This was a suit by the plaintiffs, on behalf of themselves and other Chief Factors and Chief Traders of the Hudson's 15ay, claiming to have the advantage of a rise in the value of the Hudson's Bay House in Fenchurch Street. Under the provisions of a Deed Poll, dated in June, HJi, the Chief Factors and Chief Traders, who are the is having the control of the company's affairs in the Hudson's Ba; toi y in North America, are entii i to a certain sna-re in the annual gai-t ami profit-t of ihe company and for the purpose of estimating these gains ani profits m eiich year there was to be placed on the debit side of each annual ai*" ,tat of the value of the Hudson's Bay House in London two years back, wit' interest on such value at 5 per cent, for two years, and on the credit sidi of such ai ount the value of the Hudson s Bay House one year back, with interest at .j per cent, for one year. From 1834 to 1865 there had been placed on both of th annual accounts a fixed sum of £18,872, 5s. 4d., as the value of tlie Hud son's Bay House. The company being about to sell their oM liouse in Fenchurch Street, and remove to Lime Street, the attention of tl plaintiffs was called to the increase in the present value of the old house, over its value in 1834, and they filed this bill to have the old accounts rectified, and^ the future accounts taken upon the principle provided by the Deed Pol Mr. Giffard, Q. C, and Mr. Horton Smith were for the plaintiff .ir. Druce, Q. C, Mr, Montague Bere (of the Common Law Bar) and .M .hur- stan Holland for the company. The Vice-Chancellor said it was shown by the admissions of the company that there had been a gradual rise in the value of the house, and that it was worth ;^ 36,000 more in 1865 than it had been in 1834. But from 1834 to i860 there had been no very material increase in its value, the chief rise having taken place between i85o and 1865. Under these circumstances the accounts must be rectified from i860, and in the accounts for that and the five following years a gradual increase of ;^6,ooo in the value of the house in each year mtist be mtered in the accounts which were to be taken under the provisions of the Deed Foll.^' 'N 54 That judgment has never be«-n questianed ; never appealed from ; sound and just, so it stands as declaratory of English law ad hoc. It applies, a fortiori, to the present case, for, if as to realty, mere bricks and mortar in the heart of London, England — where these " hunters " and Indian traders of the American Wild h-^d no hand — these rights, so adjudged, accrued, certainly, in the same " partnership concern," they» likewise, did so, as to matter and franchise made and acquired solely by their service, with its incidental peril of life, and oft life itself, in that far off wild, the Pacific Slope^lLsolely " — because, as to the necessary " capital " for the work, that principal and interest was rateably charged to them, and they paid it, and thus made it their own. So, of the whole concern, as per bond. Thus, in the stipulated measure of their right, they were, during the continuance of the above cited organic indenture and Deed Poll of partnership of 182 1, to all intents and purposes, pro- prietors in all matters, and rights, corporeal and incorporeal, in their in- tegrity, one and indivisible, according to the nature, aim and objective purposes and raison d'etre of the Company; id est ^ company "without prejudice " (as says the Deed Poll of 1834) " to the rights and interests of the persons entitled to the forty shares" (of Chief Factors and Chief Traders) "under the aforesaid Deed Poll of 26th March, 1821." It is to be remarked, in this connection, that the present claim, nomine John McLeod, Senior, Chief Trader — so designated in the Company's books and accounts — was — as before shown — one of the Chief Traders, party, as su' h, to the said original Deed Poll. That in this regard his position, at ihe date of the Treaty, was, if not unique, at least stronger, and entitled, perhaps, to a closer consideration in accord- ance with the strict letter and spirit of the original Indenture and Deed Poll of partnership, viz., of 182 1. The Chief Factors and Chief Traders above cited and referred to, apart from said McLood, were all of subsequent appointment, and none of then were parties, directly or indirectly to the said original instru- ments. Further than that, tie claims of these latter include — in lump, as it were, with that on the Oregon Indemnity — share, as per Deed Poll of " 1834," in the whole "concern" -east, as well as west side of the Rocky Mountains — territorial and trade. This appears, more particularly, from the letter of Mr. Miles and other " retited^^ Chief Factors, of date 14th August, 1867, above cited. 66 As to that, or any claim, territorial or trade, beyond what passed under the Oregon Treaty, the said McLeod estate, prefers no claim. Its interest in the concern expired with returns to outfit 1857. DELAY IN SETTLEMENT. For this, the two Governments — sole parties in the Treaty — are alone at fault — in mo/a. Neither the Hudson's Bay Company, nor any British subjects therein concerned, had the power to enforce settlement, nor even to move the two Governments, or either of them, to finally carry out ;he Treaty in the matter of Indemnity in question. Therefore no prescription can legally run against the claimants. On the other hand : That since the settlement, by payment to the New Hudson's Bay Company in 1867 or 1868, no prescription can be acquired from the said claimants as {a). They were not notified of it, nor placed in mora as to it, in any way by the said New Hudson's Bay Company, who, in taking the money (the four millions of dollars) simply appropriated the whole to their own sole use : (p) That the money paid by the United States Government, in question, is not of the nature of a debt — as between debtor and creditor, or liability — but is the absolute property of the claimants, in deposit and trust, in the hands of caid company, for delivery, on demand to claimants as sole proprietors there- of ; that such detention conveys no title ; is not subject for pi ascription ; coraes not under the statute of Limitations. :i 5fi TT STATEMENT OF CLAIM ' Of Estate John McLeod, Senior, Chief Trader, Hudson's Bay Company, on "Oregon Indemnity." « Under Tteaty, J^th/une, 1846. Indemnity to said company, as being at date of Treaty. $4,000,000 " Forty-hundredths " (2-5ths) thereof, as per Deed Poll of 26th March, 1821 i, 600,00c One eighty-fifth of same under said Deed Poll — Prin- cipal $18,823.52 say ;^3.873-3oistg. Interest from 15th June, 1868, to 15th Tune, 1892* 22,588.08 say ;^4,648.i9.9Stg. Total $41,411.80 ^8,522.2.9jstg. Credential of Undersigned. Letters of Administration, in London, England, in 1849, to him — then barrister, in Montreal, Canada — as eldest son of said John Mc- Leod, deceased. Letters (copy of notice) lodged with the company, at their office, London ; approved ; and, thereon, ever after, all accounts to said estate, to him rendered and, on draft, duly paid to authorized agent, viz : firm^ then, of Gillespie, Moffat & Co., London. Letters and authority never questioned. Administration still holds. f Malcolm McLeod, (Q.C., &c., Ex-Judge.) Ottawa, Canada, August, 1892. * As to interest, clause 2, towards end, as already cited, of the Deed Poll of 1821, pro- vides : " And if from any cause the said gains and profits or losses should not be paid at •' the expiration of fourte n days after such first day of June" (every year as per said Deed, same clause), " then with interest at £'> per ceiUuM per annum, jrom the evpiratum of the " said jourteen days. The delivery to and the receipt by the company, is assumed, on their acknowledge- ment, ptr letter cited of the company, to have occurred in or about March 1868. See ) .itters of the company's different Secretaries— Fraser, Smith, and Armit, above cited. M McL. t In some such like cases the Jurisnrudence of England has accorded compound interest, and in some cases with option to claim profits durfng delay of payment. tt- \U^ u. \^ u av^^iM^ Wc^^^--u^ ^^^ s<^.^^Uv^tY -So^V^c^v . ^, ,, ^-^ ^U!^,OQ ^^^t^cf^^ twW t^JUi^'^cW* 1 Xj^.-^^ ^- 57 APPENDIX A. [Extract — Clause i6th— from Charter of Charles II. to "the Gov- ernor and Company of Adventurers of England, trading into Hudson's Bay."] " And Our Will and Pleasure is, and we do also ordain, that it shall and may be lawful, to and for the said Governor for the time being, or his Deputy to be one, to admitT into, and B£ of the said com- pany, all such Servants or Factors^ of or for the said company, and all such others, as to them, or the most part of them present, at any court held for the said company, the Governor or his Deputy, being one, shall be thoui^ht fit and agreeable with the orders and ordinances made and to be made for the Government of the said company." Extract. Clause 1st ( Organic) — after preamble. " Now KNOW YE, that we bc'ng d ssirous to promote all endeavours that may tend to the public good of our people, and to encourage the said undertaking " — to wit, as therein stated — " for the discovery of a " new passage into the South-Sea, and for ihc finding of some trade for " furs, minerals and other considerable commodities" — "have o. our especial Grace, certain knowledge, and mere motion, given, granted, ratified and confirmed, and by these presents for us, our heirs and successors, do give, grant, ratify and confirm, unto our said cousin Prince Rupert," (and seventeen others, includmg twelve titled noble- men, four " Esquires," and one John Poriman, " citizen and Goldsmith of London,") " that they, and such others as shall be admitted tnto the " Society as is hereafter expressed shall be one body corporate and •' politique, in deed and in name, by the name of the Governor and " company of adventurers of England, trading into Hudson's Bay."* Commonly, briefly, called The Hudson's Bay Company. t The H. H. C. could not, by law, combine or coalesce with its rival the N. VV. C. save by s^ aJmission^ integrally, under the charter of the former. The continuing deed-poll f.f 1834 was in that sense. To have atteinpted a partnership otherwise, would have been ultra firf ., am.; entailed forfeiture of chartei, t common Liw, in public polity. "■ "'cL.