less, according to the number and relative certainty of the several elements, which enter into the calculation. Taking this view of the difference between my colleague and myself, I could not feel so sure of the absolute correctness of my own valua tion, as to warrant me in refusing to yield in the direction of his strong convictions, within what I conceived to be the limits of my possible error, especially as I found him not unwilling, on his part, to give due weight to the like considerations.

"I considered, moreover, the period which has elapsed even since the Treaty of July 1, 1863, during which the Claimants have been unavoidably delayed in the receipt of their compensation, as properly bearing upon the amount now to be allowed. Upon these grounds I have concluded to unite in an award of Four Hundred and Fifty Thousand Dollars in gold coin of the United States, to be paid according to the terms of the Treaty, as being the adequate money consideration mentioned in the Treaty for the transfer to the United States, of all the possessory rights and claims of the Hudson's Bay Company, under the third article.

Navigation of Columbia River.

"It should be added, that our jurisdiction relating only to the third and fourth articles of the treaty of Oregon, we have not consid ered in any aspect the navigation claims of the Hudson's Bay Company, which are provided for in the second article."

In considering the claims of the Puget's British Commmissioner's Opinion on Sound Agricultural Company, the British comClaim of Puget's missioner said that the same observations of a Sound Agricul- preliminary nature which were made in the tural Company. opinion expressed in the case of the Hudson's Bay Company would equally apply, and that the arguments on both sides in that case might be read in connection with those offered in the present.

Continuing, then, he said:

"The 4th article of the Oregon Treaty provides, that the farms, lands, and other property of every description belonging to the Company, on the north side of the Columbia River, should be confirmed to them; but that in case the situation of those farms and lands should be considered by the United States to be of public and political importance, and the United States Government should signify a desire to obtain possession of the whole or any part thereof, the property so required shall be transferred to the said Government at a proper valuation to be agreed upon between the parties.'

"The two points which now present themselves for adjudication seem to me to be:

"I. Of what do the farms, lands, and other property consist? "II.-What is an adequate money consideration for their transfer?

"The Claimants aver the property to consist of:

"1st. A tract at Nisqually containing about Property and 167,040 acres with buildings and improvements; Damage. "2nd. The lands at the Cowlitz River containing about 3,572 acres with buildings and improvements; "3rd. Live stock driven away or destroyed, and other personal property for the loss of which they claim compensation. "The Counsel for the United States, however, Company's Legal takes issue on the existence of the legal status Status. of the Company, averring it to be a fraudulent and illegal offshoot of the Hudson's Bay Company; denies that the Treaty acknowledges any property whatever in the Company, confirming only to it such property as it may prove lawfully belonged to it; insists that the proof of lawful ownership is in no way dispensed with; contends that if any compensation at all is due it must be confined to improvements only, and to those on lands actually enclosed; that no claim can be preferred under the Treaty for loss of live stock or other personal property; but that if any loss in respect of these had been sustained, the Company could only have recourse to the courts of law, like other inhabitants of the Territory of Washington.

"I have read and considered with much care the ingenious arguments and the numerous authorities offered to sustain these several propositions. I fail to be convinced of the legal incapacity of the Company to acquire property. I can see no ground whatever for attributing to it any fraudulent or even questionable character. I consider that the treaty of 1846, as well as that of 1863, conceded beyond all doubt, both in spirit and in explicit terms, the right of the Company to possess its lands and property north of the Columbia River.

"The only questions involving serious diffiMeasure and Amount culty or embarrassment in my mind are to of Compensation. ascertain the extent and boundaries of the farms, lands, and other property of the Company, and to decide as to what is the proper valuation, or adequate money consideration, to be paid on their transfer to the United States.

"The sources to which the Commissioners have to look for guidance, in endeavoring to arrive at a just conclusion on these points, are substantially the same as those to which ref erence has been made in the case of the Hudson's Bay Company. The same difficulties attach to an intelligent appreciation of the evidence offered in this case as in that, whether we refer to the opinions and assertions of witnesses; to the weight to be attached to the offers of compromise; or to the several facts (such as the assessed value for taxation by the local authorities, of the property) enumerated in the evidence, as bearing both on the question of extent and value.

"The position of the Puget's Sound Company under the Treaty of 1846 was equally anomalous and unsatisfactory with that of the Hudson's Bay Company. It had in addition to wait for the signification of a desire on the part of the United

States to acquire its lands and property; and it was, in the mean time, subject to the inroads of settlers claiming under the local law.

"It was exposed to the same recurring acts of aggression against which it was difficult to obtain protection from the local tribunals; and the testimony produced from the local tribunals, and the testimony produced by the claimants, evinces a state of popular feeling within the Territory, against which it seemed, from the outset, hopeless for the Company to contend. There is much force in the argument that the United States, standing in the double relation of sovereign of the newly acquired Territory, and purchaser, at option, of the land, ought not to have the advantage of any depreciation consequent on its own acts. While giving due weight to this aspect of the case, it would perhaps be of little avail, practically, to refer in detail to the difficulties which beset the Company from the year 1846 downwards, and which are so pointedly enumerated in the evidence before the Commissioners. I propose to content myself with stating, in general terms, the views I have formed touching the character and extent of the property for which indemnity ought to be given, and what I think has been shown to be the proper valuation and measure of indemnity in respect of it.

"I have already stated it to be my opinion that the title was recognized by the high contracting parties to be a right of ownership in the Company, and that the use of the word belonging' did not, as contended for by the United States, imply a restriction to such property as the Company could prove a legal title to, or ownership in. The extent of its possessions, however, was left undecided, and that question now presents considerable difficulty in forming a correct judgment with reference to it.

"The Company carried on the work, not only of farming, but of raising sheep and cattle. That business required the occupation and use of large tracts for pasturage; and this state of things was known at the time of the Treaty of 1846. That Treaty makes use of language which is manifestly intended to include the lands, and all the property of every description which the company used or possessed; and I cannot accept the modified interpretation contended for by the United States. that it meant to confirm only what the Company could prove a legal ownership in; or that in any case its claim must be confined to such land as was actually closed. The Company had no different title to the lands within enclosures, from what they had to those over which their pastoral occupations extended. Both rested on the fact of possession and use. Enclosures were unnecessary either for the convenience of the company's business, or as evidence of possession in them, for there were no other occupants in the country. They alone possessed, and the segregation of what they possessed by defined boundaries, from other tracts, was a form wholly unsuited to the primitive

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 America 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."

United States Conmissioner's Opinion.

In the case of the Puget's Sound Agricultural Company, the commissioner on the part of the United States, observing, as did the British 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.

Article IV., Treaty of 1846.

"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