condition of the territory. It is evident that in the contemplation of both parties, this property was understood to be extensive, for it is anticipated in the language of the Treaty that they might be of public and political importance. I am, therefore, of opinion that the estimate of value should extend to, and be held to include, all the lands in the geographical tract at Nisqually, which the Company used for its agricultural and pastoral purposes.

"The farm and establishment at Cowlitz offer less difficulty as to the question of boundary and extent; and I think the Claimants have made out a satisfactory case to the possession of about 3,000 acres there.

"It will be seen from the construction which in my judgment should be given to the Treaty, with reference to the extent of the Company's property for which indemnity is rightly due, viz: that it comprehends all that the Company possessed for agricultural, as well as for pasturage purposes; that applying the evidence of record to those principles of construction, the measure of indemnity should be a large one.

"I make due allowance for exaggeration of opinion on the one side, and undue disparagement on the other; and I appreciate the objections which attach to adopting, as an absolute criterion of value, the assessment by the local authorities, of the Company's property at Nisqually.

"The intrinsic difficulties in the way of a just estimation, after a close and rigid scrutiny of the evidence, are very great, even if there were no controversy on the construction of the Treaty, as to the items to which the evidence should apply.

"A comparison of views by the Commissioners has served but to show how great the difference of judgment may be, on the conflicting and varied state of facts presented, even when no other influence than that of a single-minded desire to appreciate it intelligently and impartially inspires them.

"The rule which they have thought it their duty to be guided by, has been to form what the separate judgment of each pointed at, as a fair estimate of value; and then, after discussion, that each should acquiesce in such a reasonable modification of opinion, within a certain range of value, as might be necessary to arrive at a common conclusion. This would seem to be the only alternative open, but that of remitting the case to the single judgment of the umpire.

"While, therefore, according to my individual judgment, the measure of compensation ought to be sensibly larger than that which is arrived at, I have, on the whole, though with some misgivings, felt it the part of duty, to acquiesce in a modified amount in order that the united award of the two Commissioners might set at rest a controversy, which has been already prolonged to an extent seriously injurious to the interests affected by it. I, therefore, decide, that the adequate money consideration to be paid by the United States of Amer ica to the Puget's Sound Agricultural Company for the transfer

of their rights and claims to the United States, is Two Hundred Thousand Dollars in gold, and do accordingly award, that that sum shall be paid, according to the terms of the Treaty." In the case of the Puget's Sound AgriculUnited States Com-tural Company, the commissioner on the part of missioner's Opin- the United States, observing, as did the Brit

ion.

Article IV., Treaty of 1846.

ish commissioner, that much that had been said in the discussion of the claims of the Hudson's Bay Company was also applicable to the claims of the former company, said: "Under the language of the fourth article [of the treaty of 1846], a question is raised, whether that the Puget's Sound] Company is not bound to show a title anterior to the Treaty, valid in law against the Government of Great Britain. It is based upon the fact that the Treaty speaks of farms, lands, and other property belonging to the Company, and which it declares shall be confirmed to them.

"The argument in favor of the construction of the Treaty which I have adopted in the Hudson's Bay Company's case is broad enough to include this also, and to impose upon us, as a duty, the application of these terms of the treaty to the farms, lands, and other property at the time in the apparent ownership of the Puget's Sound Agricultural Company. There was never any grant of lands by the British Government to this Company, a fact in the knowledge of both Governments, and the construction contended for would render the provision of the Treaty illusory.

"If I may quote authority upon such a point, Vattel says: (Law of Nations, Book 2, ch. 17, Par. 283.) We do not presume that sensible persons had nothing in view in treating together, or in forming any other serious agreement. The interpretation which renders a treaty null and without effect, cannot then be admitted. It ought to be interpreted in such a manner, as that it may have its effect, and not to be found vain and illusive. It is necessary to give the words that sense, which ought to be presumed most conformable to the intention of those who speak.' In illustration of these principles he instances the case of the Athenians, who after having promised to retire from the territories of their enemy, remained in the country under the pretense that the lands actually occupied by their army did not belong to the enemy. He rejects this interpretation in language more energetic than I wish to cite, and declares that by the territory of the enemy ought manifestly to have been understood everything comprehended in their ancient limits, without excepting what had been seized during the war.

"Upon these principles of interpretation, I have no hesitation in saying that the intent of the parties, as manifested by the terms employed, included all the lands, which apparently belonged to the Company. The term 'belonging' is not a condi

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 nsual 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 extinsation. 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.

66

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 execute 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 hereinbefore referred to.

"In Testimony whereof, the Puget's Sound Agricultural Company have, in due form of law, executed this dead, at London, this day of -, eighteen hundred and

The same form of deed, mutatis mutandis, is to be executed by the Hudson's Bay Company."

Performance of
Award.

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.1 In the payment of the second installment a complication arose in consequence 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.