Companies' Complaints.

Soon after the conclusion of the treaty both companies began to complain of the invasion of their rights and the destruction of their property by settlers, and of the failure of the United States to protect them in the rights and privileges which had been guaranteed to them. They maintained that the ordinary resort to the courts, to which they were recommended, was insufficient, and that special measures should be adopted for their protection.

Offer of Sale to
United States.

Meanwhile, they offered to dispose of their interests to the United States. They offered to "dispose of all their lands, buildings, live stock, and other property of every description, together with any rights or privileges attached thereto." In the estimate of its "possessory rights" the Hudson's Bay Company included "the right to cultivate the soil, to cut down and export timber, to carry on the fisheries, to trade for furs with the natives," and generally all other rights enjoyed at the time of the conclusion of the treaty. Negotiations were begun with Mr. Buchanan, as Secretary of State, in 1848, and were continued with his successor, Mr. Clayton, in 1849, and with Mr. Webster in 1850, but without definite result. But as time wore on and the country became more populous the difficulties of the companies increased, and at length provision was made for the adjustment of the whole subject.

Treaty of Arbitration.

A treaty "for the final settlement of the claims of the Hudson's Bay and Puget's Sound Agricultural Companies" was concluded by Mr. Seward and Lord Lyons at Washington on the 1st of July 1863. By this treaty it was recited that "by the 3d and 4th articles" of the treaty of 1846 certain rights (which were described in the language of those articles) were guaranteed to the companies, and that it was desirable that all questions between the United States and the companies with respect to the "possessory rights and claims" of the latter should "be settled by the transfer of those rights and claims to the Government of the United States for an adequate money consideration." And to this end it was agreed that the two governments should, within twelve months after the ratification of the treaty, each appoint a commissioner "for the purpose of examining and

S. Ex. Doc. 20, 31 Cong. 2 sess.

2 S. Ex. Doc. 37, 33 Cong. 2 sess.

deciding upon all claims arising out of the provisions of the above-quoted articles of the treaty of June 15, 1846." The commissioners were, at the earliest convenient period after they were named, to meet in Washington and make and subscribe a solemn declaration, and then to proceed to the selection of an umpire. If the commissioners could not agree in this matter, the two governments were to invite the King of Italy to make the selection, and the person so chosen was to make and subscribe a solemn declaration in the same form as that prescribed for the commissioners. Provisions were also made in regard to procedure, the appointment of clerks, and the payment of all sums of money which might be awarded.

sioner.

The

On the part of the United States the post American Commis- of commissioner was offered to Daniel S. Dickinson, of New York, but he declined it.' appointment was then conferred on Alexander S. Johnson, of New York. His commission, which was dated July 6, 1864, was issued during the recess of the Senate. A new commission was issued to him, with the advice and consent of the Senate, on the 9th of January 1865, after which he again made and subscribed the solemn declaration prescribed by the treaty." On the part of Great Britain the commis British Commissioner was Sir John Rose, the eminent Canadian statesman who afterwards rendered important diplomatic services as a confidential agent of the British foreign office in the informal negotiations leading up to the establishment of the Joint High Commission by which the Treaty of Washington of May 8, 1871, was concluded.

sioner.

The commissioners held their first meeting Organization of the in the city of Washington on the 7th of JanCommission. uary 1865, and after making and subscribing the declaration required by the treaty chose as clerks George Gibbs on the part of the United States and William Finlay Gairdner on the part of Her Britannic Majesty.

Counsel.

Mr. Charles Dewey Day appeared as counsel for the Hudson's Bay and Puget's Sound Agricultural Companies, Mr. Caleb Cushing as counsel for the United States. They each filed with the commission a written authority, Mr. Cushing's being in the form of an official letter from Mr. Seward of January 9, 1865, saying:

1 Life, Letters, and Speeches of Daniel S. Dickinson, I. 16.

2 MS. Journal of the Commission, January 10, 1865.

"By direction of the President, you are appointed the counsellor on behalf of this Government to represent it before the Joint Commission under the convention between the United States and Great Britain for the adjustment of the claims of the Hudson's Bay and Puget's Sound Agricultural Companies." Mr. Day's authority was in the form of an official letter from Mr. J. Hume Burnley, British chargé d'affaires, of January 7, 1865, authorizing him to appear at the desire of the companies. The commissioners adopted rules to regulate the transaction of business. These rules were subsequently amended, chiefly by the addition of certain regulations. They required one of the clerks to be in daily attendance at the office of the commission, which, until further orders, was established at No. 355 H street northwest, in order to receive and file documents addressed to the commissioners.

Rules.

ants.

On January 9, 1865, the commissioners, on Memorials of Claim- the application of Mr. Day, granted till the 22d of the following March for the filing of memorials. On the 16th of March they extended the time, with the consent of counsel, to the 15th of the next month. On that day the memorials were presented and ordered to be filed.

At their first meeting the commissioners Selection of Umpire. discussed the selection of an umpire without reaching a conclusion. On the 21st of April they jointly issued a commission to Benjamin R. Curtis, the distinguished jurist, whom they had selected as umpire and who had accepted the trust. On the 24th of April Mr. Curtis subscribed the requisite declaration, which was filed with the commission on the 27th of the same month.

Between May 30, 1865, and May 10, 1867, Taking of Testimony. no meeting of the commissioners is recorded. The interval was employed by counsel in the taking of testimony. By the rules of the commission all testimony, unless otherwise specially ordered, was required to be in writing, and on oath or affirmation administered according to the laws of the place where the testimony was taken by a person competent by such laws to take depositions. All depositions were required to be filed with the clerks from time to time as they were taken, and, in view of the large number expected to be taken, specific directions were prescribed as 5627- -16

to the manner in which they should be printed. It was also ordered, on motion of counsel, that an order or commission be issued for taking evidence on the part of both companies, as well as of the United States, in the States of California and Oregon, the Territory of Washington, and Vancouver Island; that such order or commission be addressed to any judge or clerk of a court of record, United States court commissioner, justice of the peace, or notary public; that the witnesses produced by either party be examined and crossexamined viva voce after reasonable notice to either party; that all objections to evidence and all other questions of law or practice be reserved, and that the evidence, with all the documents and papers and a report of all such objections, be returned to the commissioners with all convenient diligence.

Arguments.

On May 11, 1867, the commissioners, who had assembled on the previous day, received from counsel a report as to their respective proceedings and a motion for the regulation of the arguments to be submitted on each side. The report and motion were as follows:

"To the Honorable the Commissioners.

"The undersigned, counsel for the United States and the claimants, respectfully represent:

"Provision was made at as early a day as possible after the filing of the memorials of the claimants to take testimony on both sides.

"In behalf of the claimants this was commenced at Victoria, in British Columbia, August 5, 1865, and concluded at the city of Washington, April 20, 1866.

"Testimony for the United States was commenced at the city of Washington, May 7, 1866, and in the expectation of the arrival of certain evidence from Oregon on or before June 30, 1867, may probably be closed at that time. If, however, the counsel for the United States should find that further time is necessary, he will make special application therefor to the commissioners.

"At the same time, or as soon as may be convenient after the close of the evidence on the part of the United States, the counsel for the two companies will determine whether or not to put in rebutting evidence and the time requisite for that

purpose.

"In anticipation of the conclusion of the testimony on both sides, the undersigned now move the Honorable Commissioners for permission to argue the two causes in print as follows:

"Mr. Day to file opening arguments for the Hudson's Bay and Puget's Sound Agricultural Companies, severally, in a period not exceeding two months after the day when the

testimony on both sides shall have been completed, printed and filed with the clerks of the commissioners.

"Responsive arguments in both causes by Mr. Cushing for the United States shall be filed by him in like manner within two months after the day when Mr. Day's opening arguments shall have been filed.

"Closing arguments by Mr. Day for the Companies shall be filed within two months after the filing of the arguments of the United States.

"Oral arguments shall not be submitted unless the same may be hereafter required by the commissioners.

"The respective counsel beg leave to state that the preparation of the two causes for hearing has been prosecuted with all due diligence and with as much expedition as the numerous particular subjects of inquiry, the remoteness from one another of the places at which evidence was to be taken, and the interests of the parties would permit; all of which has been facilitated by the disposition of counsel on both sides to arrange by consent as to the times, places and manner of taking depositions.

"Evidence of the estimated amount of about 2,500 printed pages, of which 1,400 are already in print, has been taken in England, in British Columbia, in Canada, in the Territory of Washington, in the State of Oregon, New York, Pennsylvania, Ohio, Michigan, Tennessee, North Carolina, Louisiana and Florida, and at the city of Washington.

"C. Cushing, for the United States.

"Chs. D. Day, for the H. B. Co. & the P. S. A. Co." And the commissioners ordered accordingly.

Amendment of Memorial.

On June 10, 1868, Mr. Day gave notice of an intention to ask leave to amend the memorial in the case of the Hudson's Bay Company. The motion was granted on February 23, 1869.

Close of Cases.

On January 26, 1869, Mr. Day addressed a letter to the commissioners, stating that the closing argument of the claimants, in reply to the responsive argument of the United States, had been transmitted to Washington to be filed of record, and that three copies were also sent to the address of each commissioner. "The case," he added, "is thereby completed on both sides according to the terms of the order made by the commissioners on the 11th of May, 1867, and I have the honor respectfully to request that it may be taken into consideration, with a view to final adjudication upon it."

On February 24, 1869, the commissioners Oral Arguments. granted a motion, which Mr. Cushing made on the 10th of the preceding December, that he be permitted to address them orally on the questions pending in both cases. They appointed Friday, April 12, and the city