the attitude taken by the Government and its officers in regard to the rights of the Company under the Treaty, and the fact that trespass and violation in every form were practised, showed a substantial failure to respect, and accord that reasonable measure of protection to their rights, which, in a Treaty stipulation of this character, and with reference to rights of so peculiar a nature, one nation has the right to look for at the hands of another.

"It would be productive of no practical benefit to attempt by general rules, to define the exact measure of duty devolving on the United States in each particular case where a breach of the Treaty stipulation is complained of.

"It was obvious at the time of the Treaty, that the position of a foreign corporation, claiming to exercise almost every right not incompatible with sovereignty, in the territory of the United States, was an anomalous one, and one which would, as between any nations, and even in a maturer state of society, have given rise to innumerable difficulties that could neither be foreseen nor guarded against.

"Those difficulties were aggravated in the present case by the two-fold exercise of authority by the State and the Federal Governments; by the rude and immature condition of society; and by the spirit of individual liberty, bordering on lawlessness, which exists in a new country. It is hardly possible to interpret the precise obligation which the words of the Treaty import, without reference to the practical difficulties which subsequently arose, and which could not then but have been anticipated, and must be presumed to have been in the minds. of the high contracting parties. Keeping these considerations in view, I regard the obligations of the United States under the Treaty, to mean, that, cognizant of this state of things, they undertook the correspondingly extensive duty of seeing that the Hudson's Bay Company should not suffer from them, but that the Company would be maintained in the exercise of their rights and property as fully and amply as they had been previous to the Treaty.

"Before entering on a consideration of the Duration of Com- second branch of the case, it is proper to notice pany's Rights. the objection taken as to the duration of the Company's rights. It is contended on the part of the United States that any rights which the Company might have had were limited as to time, by the licenses of exclusive trade granted by Great Britain, which finally expired in the year 1859, and that after that day the Company's possession was without any color of right whatever.

"I cannot acquiesce in this proposition. The licenses in my opinion had for their object to prevent the danger to the peace of the country, and the well being of the Indians, which might have arisen from the competition of rival traders within the territory. The rights which were recognized in the Company,

as national pioneers, were both antecedent to, and independent of, these licenses.

"Their occupation of the lands, their trading, their posts and other possessions, were not dependent on the license which only superadded the privilege of exclusiveness in favor of the Company, against all but the citizens of the United States. If, at the expiration of the licenses, the British Government had not seen fit to renew them, the rights, property, and interests of the Company would not have been impaired, but must have continued to be respected by the Crown on the grounds of natural justice and equity, although the Company would have been deprived of the power of excluding other British subjects from trading in the country.

"Such is the aspect in which, according to my judginent, the license of trade ought properly to be regarded.

"II. The duty of ascertaining the adequate Amount of Compen- money consideration to be paid to the Hudsation. son's Bay Company by the United States is one of extreme difficulty,-especially if the determination of the sum is to depend on the legal appreciation of the evidence which has been submitted to the Commissioners.

"The claim is presented to the Commissioners under certain specified heads of demand, viz:

"1st. The value of the various posts of the Company. "2nd. The value of its trade.

"3rd. The value of the right of navigating the Columbia River.

"4th. The loss and damage occasioned by the acts of the United States.

"The means which have been afforded the Commissioners of arriving at a conclusion on these points are:—

"1st. The opinions of numerous witnesses who have been examined on both sides.

"2nd. The offers that have been made, as well on the part of the United States as on the part of the Hudson's Bay Company, at various times since the date of the treaty.

"3rd. Other documentary evidence, and a variety of circumstances connected with the claim, bearing on the question of value, which have taken place since 1846.

"With reference to the item of claim founded

Navigation of Colum- on the right of navigating the Columbia River bia River. (No. 3) the Treaty under which the Commissioners exercise jurisdiction empowers them to examine and .decide on all claims arising out of the 3rd and 4th Articles of the Treaty of June, 1846.

"These articles relate to the possessory rights of the Hudson's Bay Company, and to the lands of the Puget's Sound Agricultural Company only-and the stipulations relating to the navigation of the Columbia River are to be found in another, the 2nd Article of the Treaty of 1846,

"No reference is made to the 2nd Article of the Oregon Treaty in that under which the Commissioners hold jurisdiction. It would, therefore, appear that their functions are limited to a consideration of those claims only which arise out of the provisions of the 3rd and 4th Articles.

"The Counsel for the Claimants, however, contends, that even assuming the alternative that the right cannot now be dealt with 'as a distinct and independent ground of claim under the 2nd Article of the Treaty, it is nevertheless a possessory right, giving an enhanced value to all the other possessions of the Company?

"I have given my anxious consideration to the aspect of the case with reference to the Columbia River, which is thus presented, and am compelled to adopt the conclusion that dealing with any right of navigation secured by the 2nd article of the Oregon Treaty must be considered as ultra vires of the Commissioners.

"I therefore proceed to discuss the remainPosts, Lands, Trade, ing three items of claim presented to the Comand Loss and Dam- missioners, viz: the value of the Company's posts and lands, the value of the trade, and the loss and damage resulting from the acts which have been committed.

age.

Disregard of Prior

"The evidence of the Claimants, if it stood alone, might be appealed to, to sustain an award of more than a million of dollars; while the weight of the evidence adduced by the United States would reduce the claim to a very insignificant sum. "Offers on the part of certain functionaries of the United States were made at one time Offers of Compro- to pay $1,000,000 for the rights of the two Companies, including the navigation of the Columbia River, as expressed in the draft of a convention prepared by Mr. Webster in 1852; while at another time, in 1860, the company, through Lord Lyons, agreed to accept $500,000 as in full for their demands.

mise.

"During the negotiations, various intermediate sums were named as a proper indemnity which it would be just to pay. I cannot regard these negotiations as any evidence of the appreciation by the Company of the true value of their rights. The Company then had well grounded apprehension that they might receive nothing. Congress had declined to vote any sum whatever. The Company no doubt feared that the Treaty stipulation could only be enforced at the risk of involving national strife. They knew that private interests must succumb in the presence of, and to avert so vast a danger, and were ready to accept anything which the British Government might indicate its readiness to stand on. I am disposed, therefore, to regard the wide range of these negotiations, and the diversity in the sums offered and agreed to be accepted, chiefly as indicative of the desire of the executive Governments of both countries to arrive at some adjustment of a national

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

ages.

"If we recur to the opinion of the witnesses Evidence as to Dam- as to the value of the posts and land, and of the trade, those of the Claimants would fairly, and after making very ample allowance for over estimate, justify an award considerably in excess of the lowest sum which the Company was at one time prepared to accept; while in the opinion of the witnesses for the United States, those items of claim are hardly of any appreciable value. It cannot be denied but that during the interval which elapsed between the date of the Oregon Treaty, and their final abandonment of the country, the Company suffered a series of wrongs in disregard of the Treaty stipulations, for which indemnity is properly due to them; but it would serve no good pur-. pose to refer in detail to these acts of aggression, or to the obstacles which from the first had been interposed in the Company's way.

on Award.

"While I hold these general views with

Reasons for Agreeing respect to the rights of the Claimants, and to the measure of indemnity they ought to receive, I am not indifferent to the great importance of arriving at a 'conclusion in reference to the amount to be awarded, in which both Commissioners may concur.

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

* *

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

duty of not pushing to the limit of irreconcilable difference, the opinion he holds; but on the contrary of modifying his views to some extent within the range to which the testimony may reasonably be held to apply, where he finds an honest opinion, equally strong, adverse to his.

"After much anxious and lengthy comparison of opinions with my colleague, and on the fullest and most careful consideration I have been able to give, I believe it to be my duty to acquiesce in the sum of Four Hundred and Fifty Thousand Dollars in gold, as an adequate money consideration to be paid to the Hudson's Bay Company for the transfer of the rights and claims to the Government of the United States, specified in the Treaty of the 1st July 1863 and do award that sum to be paid accordingly in terms of the said Treaty."

United States Commissioner's Opinion.

The commissioner ou the part of the United States, after reciting the provisions of the treaty of arbitration and the treaty of 1846, in relation to the Hudson's Bay Company, said:

"These are the Treaty provisions which mainly control the rights and claims upon which we are to pronounce. There are, however, earlier arrangements between the two Governments respecting the Northwest Territory which ought to be kept in view.

"By the Convention of October 20, 1818, article 3, it was agreed that any country that may be claimed by either party on the northwest coast of America, westward of the Stony Mountains, shall, together with its harbours, bays and creeks and the navigation of all rivers within the same, be free and open for the term of ten years, from the date of the signature of the present convention, to the vessels, citizens and subjects of the two powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or state to any part of the said country; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves.

"Subsequently on the 6th of Angust, 1827, Convention of 1827. by another convention, the third article of that of 1818 was indefinitely extended and continued in force, subject, however, to be abrogated on twelve months' notice by either party to the other. And it was further declared that neither convention should be construed to impair, or in any manner affect the claims which either of the contracting parties may have to any part of the country westward of the Stony or Rocky Mountains.

"In connection with the negotiation of the convention just mentioned, it is proper to notice the British statement annexed to the protocol of the sixth conference, held at London December 16, 1826, between Messrs. Huskisson and Addington, the