the license to trade under which the company discharged its functions in the territory.

And even assuming that the license was not extinguished by the acknowledgment of the sovereignty of the United States over the territory, it ceased in 1859, the Crown having rescinded it in 1858 in British Columbia. ·

The possessory rights of the company having been thus defined, Mr. Cushing maintained that the obligation on the part of the United States to respect them simply required that they "should not, by any act of their own or their officers, invade those rights; and that they should extend proper judicial remedy for their protection." So far as the company complained of unauthorized trespassers upon its possessions, the United States was, said Mr. Cushing, in no sense responsible.

Mr. Cushing declared that $250,000 would be a large allowance for the transfer of all the claims and rights of the Hudson's Bay Company to the United States.

The memorial in the case of the Puget's Claim of Puget's Sound Agricultural Company, after reciting Sound Agricultural the fourth article of the treaty of 1846, set Company. forth that the United States had neither confirmed the company in the possession of its lands nor signified any desire for a transfer of them, as provided in the treaty, at a valuation, "and that by reason thereof, and of the acts and proceedings of officers of the United States, and of American citizens, and of others assuming to act under the authority of the laws, or of the Government of the United States, the company were deprived of the use and enjoyment of a large portion of their lands, farms, and other property, and of the rents, fruits, and profits thereof; their pasturage was destroyed or taken from them; their live stock killed or driven off, and wholly lost to them; and their entire business broken up or rendered unprofitable." For these various losses the company claimed £240,000, or $1,168,000. Many of the arguments used in support of the claim of the Hudson's Bay Company were employed in the case of the Puget's Sound Agricultural Company.

Opposition of United
States Counsel.

Mr. Cushing opposed the claim on the ground (1) that the company, having been formed by the Hudson's Bay Company for purposes which the latter could not rightfully pursue, and having no charter from the Crown, was fraudulent in its origin and had no legal existence; (2) that the obligation of the

United States, under the treaty of 1846, to "confirm" it in its farms, lands, and other property left open the question of title; (3) that it had no legal title to the lands which it occupied, either by original grant from a sovereign authority or by occupancy, the country being wild and under no civilized government and the Indian title not extinguished; (4) that, having no legal title, its only right to its lands was the "possessory right" of mere occupancy, which could apply only to lands actually under fence, and for which the utmost that could be claimed was payment for improvements; (5) that it had no claim against the United States for alleged injuries to personal property, such as horses, neat cattle, or sheep, since it had, like other inhabitants of the country, a remedy in the courts; (6) that if, and so far as, the United States applied its land laws to the land claimed by the company the government merely exercised proper rights of sovereignty in discharge of its duty to all the inhabitants, including the company, and in so doing benefited the company; (7) that the claims of the company should on these grounds, and on the ground of exaggeration by false testimony, be reprobated and rejected. In his opinion on the claim of the Hudson's British Commission- Bay Company, the British commissioner said er's Opinion on that he proposed to confine himself to the consideration of two points, viz:

Hudson's Bay Company's Claims.

"1st.-What were the rights of the Hudson's Bay Company as understood by the Treaty of 1846? And what obligations did the United States of America thereby assume in respect of them?

"2nd. What is now an adequate money consideration for these rights and claims?

Rights of the Company.

"I.-The powers of the Hudson's Bay Company, as recognized by the Crown and the Parliament of Great Britain, for many years previous to the Treaty of 1846, were not merely those of a trading company. Motives of public policy on the part of Great Britain had prompted that Government to confer on the Company, in the uncivilized territory over which they extended their operations, authority of a judicial, political and quasisovereign character. So far from being considered as intruders on the public domain, encouragement, in the shape of exclusive rights of trade, and otherwise, was held out to the Com pany as an inducement to carry their enterprise to regions into

1 Citing Johnson v. McIntosh, 8 Wheaton, 543; Mitchell v. United States, 9 Peters, 711; Dodsley's Ann. Reg. 1763, p. 208; 4 Stats. at L. 730; De Armas v. Mayor, 5 Miller (La.), 132.

which they might extend, and be the representatives of British interests.

"The public faith, was, therefore, pledged towards the Company to secure just and friendly consideration for these interests, wherever the authority of England extended, and in whatever form it might properly be exercised.

"The rights and interests of the Company could hardly be more comprehensively defined than by the expression 'possessory rights.' They exercised no rights which they had not acquired, and which they did not, long before the date of the Treaty, possess, with the knowledge, and by the sanction, of the Crown. I am unable to coincide with the argument of the Counsel of the United States, that the expression 'possessory rights' imported only such fixed improvements on land as a tenant at sufferance might claim. I am, on the contrary, impelled to adopt, as the legitimate interpretation, the general view urged by the Claimants: that it comprehended all things, corporeal and incorporeal, of an appreciable character, of which the Company had the enjoyment.

"It is urged, however, that during the joint occupation preceding the Treaty of 1846, the United States were sovereign, de jure, of the country over which the Hudson's Bay Company's operations extended; that the convention of 1818 merely sus pended the exercise of such sovereignty; that Great Britain could not confer, nor could the Hudson's Bay Company acquire any rights in the interim, except those of ordinary occupants; and that the Treaty of 1846 imposed no new obligation on the United States, beyond what its laws extended to other persons in the unauthorized possession of its public lands.

"The convention of 1818 cannot, in my opinion, be construed to recognize, in either party, an exclusive right to the territory, but, on the contrary, only to declare what the previous circumstances in relation to the country, and the concurrent statement of the two governments imported: that the title of neither nation was clear. I do not, however, consider it necessary to found an argument on this, because the language of the Treaty of 1846 seems to me clearly to imply on the part of the United States, an acknowledgment of, and to concede a rightful possession and property in, the Hudson's Bay Company, of the character I have defined, which the Government of the United States assumed the important and substantial obligation of respecting.

Obligation of the
United States.

“This obligation their Counsel contends was fulfilled if the United States Government, by itself or its officers, refrained from direct violation of such rights as the Treaty referred to, and permitted the Company to exercise the judicial remedies customary to the country.

"The Claimants contend for a broader view of the duty, and that under the peculiar circumstances of the country, and the position in which the Hudson's Bay Company was placed,

which they might extend, and be the representatives of British

interests.

"The public faith, was, therefore, pledged towards the Company to secure just and friendly consideration for these interests, wherever the authority of England extended, and in whatever form it might properly be exercised.

"The rights and interests of the Company could hardly be more comprehensively defined than by the expression 'possessory rights.' They exercised no rights which they had not acquired, and which they did not, long before the date of the Treaty, possess, with the knowledge, and by the sanction, of the Crown. I am unable to coincide with the argument of the Counsel of the United States, that the expression possessory rights' imported only such fixed improvements on land as a tenant at sufferance might claim. I am, on the contrary, impelled to adopt, as the legitimate interpretation, the general view urged by the Claimants: that it comprehended all things, corporeal and incorporeal, of an appreciable character, of which the Company had the enjoyment.

"It is urged, however, that during the joint occupation preceding the Treaty of 1846, the United States were sovereign, de jure, of the country over which the Hudson's Bay Company's operations extended; that the convention of 1818 merely suspended the exercise of such sovereignty; that Great Britain could not confer, nor could the Hudson's Bay Company acquire any rights in the interim, except those of ordinary occupants; and that the Treaty of 1846 imposed no new obligation on the United States, beyond what its laws extended to other persons in the unauthorized possession of its public lands.

"The convention of 1818 cannot, in my opinion, be construed to recognize, in either party, an exclusive right to the territory, but, on the contrary, only to declare what the previous circumstances in relation to the country, and the concurrent statement of the two governments imported: that the title of neither nation was clear. I do not, however, consider it necessary to found an argument on this, because the language of the Treaty of 1846 seems to me clearly to imply on the part of the United States, an acknowledgment of, and to incede a rightful possession and property in, the Hudson's Bay Company, of the character I have defined, which the Government of the United States assumed the important and substantial obligation of respecting.