tion, and imports none into the provisions. It is used merely as a part of the descriptive designation of the property intended. "A question is also presented, as to the exExtent of Company's tent of the possessions of the Company, and Possessions. the outward indicia of property necessary to bring any particular lands within the terms of the Treaty. "It should not be forgotton that at the period when the Treaty was made, the possessions of the United States on the Pacific coast were comparatively of trifling importance. California had not been acquired, gold had not been discovered, and the actual population of American citizens was very small. Apart from the occupation by the two Companies, whose claims are before us, most of the country was vacant. To require, under these circumstances, such evidence of appropriation and possession as are usual in settled countries, would be very unreasonable. In settled countries, such evidence is required, because enclosures and other like marks of ownership are the usual attendants upon proprietorship, and serve as notice to others who may have or claim conflicting rights. In this wilderness they would have been mainly useless for any purpose of enjoyment by the Company of their lands, and idle for any other purpose. It is enough if their lands were possessed in any sense, by such appropriation to the uses of the Company, as their circumstances called for. They had farms within enclosures, and they grazed their extensive herds of cattle over certain portions of the territory, near their main establishments, and included all these lands within what they regarded and used as their possessions before the Treaty. "I am satisfied from the evidence, that their claims to lands both at Cowlitz and at Nisqually are not afterthoughts as to their extent, but are substantially in accordance with the fact as it existed at the time of the Treaty. Two considerations strengthen me in this conclusion. The first is, that were their possessions so limited in extent, as is claimed on behalf of the United States, they could not have been deemed, in the then condition of the country, of enough consequence to require a provision, looking to their becoming of public and political importance, and providing in that event for their acquisition and purchase by the United States. It is only to a tract of country of considerable extent that such terms can have been thought applicable. This is not a mere power of eminent domain by which public necessity is provided for upon compensation made. It is political importance which was in view. "The next is, that the United States has never proceeded to confirm to this company any lands whatever, as they stipulated that they would. In the absence of such action on their part, I think it my duty to extend to the Company the benefit of any doubts which may possibly exist, as to the precise extent of their possessions at the time of the Treaty. "I find no evidence that this Company has ever voluntarily submitted to any dismemberment of its possessions; and though it has, in fact, been deprived of much the greater part of all its lands, I must consider its rights as standing unat fected by everything which has taken place since the date of the Treaty. "In considering the amount which ought to Amount of Compen- be paid by the United States, for the extin. sation. guishment of its claims, and the acquirement of its rights, I feel myself pressed upon by considerations of a like nature to those which I have mentioned in discussing the claims of the Hudson's Bay Company. The same diversity of testimony, and the same difference of views between myself and my colleague, as to questions of value, have existed in this case as in that, and the same process of reasoning and reflection have lea me to unite with him in awarding to the Puget's Sound Agricultural Company the sum of Two Hundred Thousand Dollars in gold, to be paid according to the terms of the Treaty, as the adequate money consideration for the transfer to the United States of all the possessory rights and claims of the Puget's Sound Agricultural Company, under the fourth article of the Treaty of Oregon." Text of Award. The text of the award of the commissioners is as follows: "AWARD. "At a Meeting of the Commissioners under the Treaty of July 1st, 1863, between Her Britannic Majesty and the United States of America for the final settlement of the Claims of the Hudson's Bay Company and Puget's Sound Agricultural Company held at the City of Washington, on the tenth day of September 1869, "Present: "John Rose, Commissioner on the part of Her Britannic Majesty, "Alexander S. Johnson, Commissioner on the part of the United States of America. "The Commissioners having heard the allegations and proofs of the respective parties, and the arguments of their respective Counsel, and duly considered the same, do determine and award that, as the adequate money consideration for the transfer to the United States of America of all the possessory rights and claims of the Hudson's Bay Company, and of the Puget's Sound Agricultural Company, under the first article of the Treaty of June 1st, 1863, and the third and fourth articles of the Treaty of June 15th, 1846, commonly called the Oregon Treaty, and in full satisfaction of all such rights and claims, there ought to be paid in gold coin of the United States of America, at the times, and in the manner provided by the fourth article of the Treaty of June 1st, 1863, on account of the possessory rights and claims of the Hudson's Bay Company Four Hundred and Fifty Thousand Dollars; and on account of the possessory rights and claims of the Puget's Sound Agricultural Company the sum of Two Hundred Thousand Dollars; and that, at or before the time fixed for the first payment to be made in pursuance of the Treaty, and of this award, each of the said Companies do exe cute and deliver to the United States of America, a sufficient deed of transfer and release to the United States of America, substantially in the form hereunto annexed. "In Testimony Whereof, We, the said Commissioners, have set our hands to this award in duplicate, on the day and year, and at the place aforesaid. "JOHN ROSE, "ALEXANDER S. JOHNSON." "FORM OF DEED. "Know All Men by these Presents; That the Puget's Sound Agricultural Company, in pursuance of the Award of the Commissioners, under the Treaty between Her Britannic Majesty and the United States of America, of the first day of July, 1863, which award bears date, September 10th, 1869, doth, by these presents, transfer to the United States of America, all the possessory rights and claims of the said Company mentioned and specified in the first article of the said Treaty, and in the third and fourth articles of the Oregon Treaty therein referred to; and also doth, by these presents, release unto and in favor of the United States of America, all claims and demands founded upon, or growing out of the aforesaid provisions of the said Treaties, or the possessory rights and claims of the said Company herein before referred to. "In Testimony whereof, the Puget's Sound Agricultural Company have, in due form of law, executed this deed, at London, this eighteen hundred and day of The same form of deed, mutatis mutandis, is to be executed by the Hudson's Bay Company." Performance of In accordance with the award transfers were executed to the United States by the two companies, and the money was duly paid by the United States in two installments of $325,000 each.' In the payment of the second installment a complication arose in censequence of a claim by Pierce County, Washington Territory, against the Puget's Sound Agricultural Company, amounting to $61,305.22, for taxes. In appropriating the money for the payment of the second installment under the award, Congress provided that, before payment should be made of the portion awarded to the Puget's Sound Agricultural 16 Stats. at L. 386, 419. The receipts in the Treasury are respectively dated September 26, 1870, and September 15, 1871. Company, "all taxes legally assessed upon any of the property of said company covered by said award, before the same was made, and still unpaid, shall be extinguished by said Puget Sound Agricultural Company; or the amount of such taxes shall be withheld by the Government of the United States from the sum hereby appropriated." The question thus raised was submitted to the Attorney-General of the United States. On the 7th of August 1871 he rendered an opinion to the effect that the award should be paid. The treaty of 1863 stipulated, he said, that the sums awarded under it should be paid in two fixed installments "without any deduction whatever" (Article IV.). If the proviso inserted by Congress in the appropriation should cause the payment of a less sum than the amount awarded, it would produce a breach of the treaty. The statute should therefore be construed strictly, and be held to mean no more than its language necessarily imported. Under this rule the term "taxes," standing in an act of Congress, with nothing in the context to enlarge its signification, was construed to mean United States as distinguished from State or Territorial taxes. On the strength of this opinion, as the United States had no claim against the company for taxes, the money was paid over "without any deduction whatever.” 2 116 Stats. at L. 419; H. Misc. Doc. 222, 42 Cong. 2 sess. 2 For. Rel. 1871, pp. 532–540. CHAPTER IX. IMPEDIMENTS TO THE RECOVERY OF DEBTS: COMMISSION UNDER ARTICLE VI. OF THE JAY TREATY. Debts Due to British Subjects. In the negotiation of the provisional articles of peace between Great Britian and the United States in 1782 it was found necessary to adjust two questions which involved to a large extent the pecuniary interests of British subjects. These were the question of either restoring the estates of the loyalists or affording indemnity for their confiscation and the question of securing the payment of debts due to British subjects before the war. While the conclusion of peace would once more open the courts of the country to British subjects, there existed on the statute books of various States acts which were passed during the war, and which, remaining in force after its termination, would continue to bar the recovery of debts. Chief among these were the confiscation and sequestration acts, which authorized the payment of debts due to British subjects into the State treasuries and made such payment a full discharge of the obligation of the debtor. ion. When in the earlier stages of the negotiaJohn Adams's Opin- tions at Paris the British commissioners demanded some provision to secure the payment of debts as well as compensation for the loyalists, Franklin and Jay answered that the matter was one that belonged exclusively to the several States. When John Adams arrived in Paris he announced a different opinion. "In my first conversation with Mr. Franklin on Tuesday last," says Adams, in his Journal of the Peace Negotiations, under date of Sunday, November 3, 1782,2" he told me of Oswald's demand of the payment of debts and compensation to the Tories. He said their answer had been that we had not power nor had 1 Am. State Papers, For. Rel. I. 193-200. |