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Oregon indemnity. Claim of chief factors and chief traders of the Hudson's Bay Company, thereto, as partners,… McLeod, Malcolm, 1821-1899 1892

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Array           
Synopsis
Page.
••5-9
Accounts :—
H. B. C. with Chief Factors and Chief Traders 19-21
American Case 12-18
British Case 12-i&~
Chancery, judgment in       53
Chief Factors and Chief Traders :—
Deed Poll (of Partnership) 1821 22-26
Deed Poll (continuing) of 1834      31
Paid (share) on surrender by H. B. C. to Crown in  1869....     32
Partnership 18-39, 55
Status, as per evidence of Governor Sir G. Simpson and Right
Hon. Sir Edward Ellice 34_39
Claims :—
Treaty Indemnity 12-18
Chief Factors and Chief Traders in H. B. C 6-26, 34-39
Correspondence, ad rem, between Chief F's and Chief T's . .42-49
Credits as per Deed Poll 20-2 r
Debits as per Deed Poll      20-
Deed Poll (of Partnership) 1821   18-26
Deed Poll, continued in 1834      31
Establishments (Trade)    14-26, 34,
Evidence, ad rem:—
Before Commons Committee, 1857 iz-ia  -if
Sir G. Simpson 15, 34
Right Hon. Sir E. Ellice ,    • 35» 37
Hudson's Bay House, London    20, 53
Huskisson, M. P., Hon., Protocol, 1826      i->
Judgment in McTavish et al. vs. H. B.C. in Chancery      53
Lands in Fur Trade :—
British Columbia      !4
London, England	
Oregon 12-18
Puget's Sound	
Treaty purview 12
Law of case	
20.
'5  o
8,
r5> McLeod (John, " Senior," Chief Trader) :—
Claim i     56
Credential of present Claimant      56
Special Service ad rem 27-30
New Hudson's Bay Company :—
Basis of purchase, 1863.     4°
Bill of Sale     40
Oregon Indemnity not included      42
Standing, ad rem 4°~53
Partnership :—
Charter (Appendix A.)      57
Deed Poll of 1821 22-26
Deed Poll, continued, 1834      31
Letters, &c, of H. B. C. in 41-48
Real estate 14, 20, 53
Rebates by " New " H. B. C      49
Reports (Official) ad rem:—
Brown (Hon. G ) Canada     41
Delegates (Cartier and McDougall) C     40
Settlement :—
Delay in  55
Statement for  56
Ships, &c, in Assets  20
Stock of H. B. C  38
Treaty (Oregon) of 1846 :—
Extracts      12
Indemnity I2-i4» 41
What j 12-18
Whom to 12-18, 38, 51
^Treaty of 1825 :—
Protocol 13, 14
Subjects of Britain     12-18 SYNOPSIS
—OF—
Claim of Chief Factors and Chief Traders of the Hudson's
Bay Company, as partners, in
THE INDEMNITY
UNDER
THE  OREGON TREATY
BETWEEN
GREAT   BRITAIN and THE   UNITED  STATES
OF   AMERICA.
FACTS.
i. On 15 June, 1846, Treaty was made between Great Britain and
the United States of America, under which the former ceded to the
latter all claim in or to the region, known as Oregon, south of the 49th
degree of North Latitude, west of the Rocky Mountains to the
Pacific, comprising all that part of the watershed of the Columbia
south of said latitude, the basin of Puget Sound—land and water—and
all the rest of the Pacific Slope south as far as California.
2. All this vast region was then entirely in the possession and
control of the Hudson's Bay Company, under a strong military organization necessary to their trade operations, including several strongly
fortified forts with cannon ; also large farms for raising grain and farm
stock—the whole estimated (fairly) by the Company at five thousand
acres under culture. For all this, the Company claimed one million
pounds sterling. See on this point the evidence of Sir George Simpson
Governor of the Company, as hereinafter cited.
3. The  cession was of the whole  territory and  establishments,
forthwith. 6
4 Thereon an indemnity was stipulated to "all British subjects "
for all property and rights then—as the Treaty textually states—
" already lawfully acquired"—amongst them, specifically, to the " Hudson's Bay Company ", as then being. That Company had—as admitted
in the Treaty—lawfully acquired " possessory rights " on the whole
land, to wit under Crown License from Britain for exclusive Indian
trade throughout the region from 1821 to the date of the Treaty.
5. The Company's claim, at the Treaty, for these "possessory
rights, " was one million pounds sterling.
The American Government declined to pay so much, but offered
one million dollars.    This, the Company declined to accept.
There it remained in abeyance for over twenty-one years : not
from any default to move in the matter on the part of the Company or
the said British subjects concerned—all powerless per se, to enforce due
settlement—but from the shere neglect of the two Governments to do
justice in the matter, notwithstanding the urgence of the said claim by
the Company or, at least, by the said chief factors and chief traders,
from time to time.
6. That in or about March, 1868, over twenty years after the
Treaty, the " New | (the present) Company—as appears by their own
admission when repeatedly applied to by the claimants—formally
accepted and recieved the said indemnity from the Government of the
United States.
That such acceptance by them could, legally, only be as necessary
gestor negotiorum in trust for said beneficiaries (at date of Treaty aforesaid) or their legal representatives.
7. That the indemnity in question accrued and determined,
absolutely, at once and forever, at such date; for the real and only loss
was to the Company as then being, with its chief factors and its chief
traders then being : and which could not, in the nature of things, accrue
to the Company as subsequently constituted, or to any other chief factors
or chief traders in it, who never had any right in the property so ceded.
8. That addressed on the subject, in enquiry, by the Chief Factors
and Chief Traders of 1846 from time to time, the Hudson's Bay Company—both that being before the sale of 1863 to the so called New
Hudson's Bay Company, and the latter—answered with a promise of
I due consideration" of the claims of the said Chief Factors and
Chief Traders, or their legal representatives in the matter " when "—as promised by them in terms-*the Company's claims and the American
Government under the Oregon Treaty are (id est', should be) " settled.'
That, however, to a similar enquiry, by certain retired Chief Fac*
tors so interested, the answer of the New Company, by their Secretary,
was in direct denial. This, with other letters on the subject, are given,
at length, in the present pamphlet, with other evidence, showing how
the matter stands.
9. That by the Original Deed Poll of Partnership, of date 26th
March 1821, continued in 1834, to an "unlimited period," and unchanged as to Chief Factors and Chief Traders till 1871, these were
partners in the concern to all intents and purposes, for "loss" as well as
profit, and were, rateably, charged, in debit, annually, for all property,
real and personal, in the trade and concern, as appears by full citation
on this head, in the present pamphlet, from the said Deed Poll.
10. That by the said original deed of partnership, the whole "concern"—including all plant and realty, in England as well as in America—
was divided into 100 shares, whereof 40, subdivided into eighty-fifths,
were to belong entirely to the Chief Factors and Chief Traders for the
time being, in the proportion of two eighty-fifths to a Chief Factor and
one eighty-fifth to a Chief Trader.
11. That the whole property—stock, and plant, and realty of the
Company was made by its Trade \ save what realty—over and above
their trade posts with incidental farm and building sites—they got as a
consideration for their surrender, besides the ^300,000 sterling, from
Canada in 1869.
That moreover, in the accounts annually rendered to the Chief
Factors and Chief Traders, according to the terms of the original
Deed Poll—as cited in present pamphlet—they were debited with all
realty as well as plant, goods, monies and all expenses in the trade, and
also with interest thereon, at 5 per centum per annum, said interest
payable only to the 60 shares aforesaid—viz, "Stock-holders" proper.
That as to such "Stock-holders"—eo nomine—or as a distinct and separate interest, in the concern, there is no mention in the original or
any other organic deed of the partnership concern. That that partnership was integral, and for the trade in question alone, and that the
rights in question were alone so acquired.
12. That there was no right, franchise, or holding in any way by
the company, "Old" or "New" in question, as to the subject of indemnity 8
aforesaid,  save as a Trading Company, under the Charter and Crown
License herein set forth, or alluded to.
13. That therefore only the said Company—as being at the date
of the said Treaty/and as then, in severalties, constituted, viz, the Chief
Factors and Chief Traders in their respective shares, and the holders of the
other sixty shares (out of the hundred aforesaid)—were in their respective
shares, severally, at the end of the then current year, viz, 1st June 1847,
or so soon thereafter, in like current trade year for such accounting, as
the indemnity in question should be paid, entitled to receive such
indemnity.
14. That the delay in arriving at a final assessment of damages or
loss, actual, for indemnity, did not cancel, nor derogate to such right
and claim, accrued, and actually due and stipulated at the date of the
Treaty.
That at and ever after the date of the Treaty, the then determined
right of indemnity aforesaid, obtained and held, and continued to hold
as to the said partners, then being; and in case of their death before
payment became due and payable in due course, to their legal representatives.
15. That the position of the Company, as a Company per se, was
from the necessity of the case, merely, as gestor negotiorum, in agency
and trust: and as such, accountable to the principals concerned, in due
course.
That as to that course, it is specifically prescribed in the deed of
partnership cited.
16. That that course, as an obligation under the deed, is of the
essence of the contract or covenant of partnership. That it enjoins and
imperatively requires an annual rendering of accounts, to each partner
to 1st June in each year. See citation, on this point, from Deed Poll,
clause 2.
17. That in the Bill of Sale or Schedule of Assets (total) of the
"Old" Company to the "New" in or about 1st July 1863, as herein
more fully set forth, the said indemnity, or claim, thereto was—vety
properly—not included, as in fact, it did not belong to the Company
(vendor) as then being.
18. That the present (the "New'') Company paid nothing for it.
That moreover, by a system of "rebates," out of what monies and
property they got, under, or under colour of their purchase from the oldJCompany, they have, by several millions of pounds worth, been fully
recouped for the one million and a half pounds (sterling) by which they
in loto, bought out the "Old" Company then (ist July 1863) being.
That in face of such facts, the retention of said indemnity money
and refusal to pay over the same to duly accredited claimants is simply
illegal.
LAW.
That as to the law of the case, it is really too obvious for discussion.
Authorities are cited as to the legal character.; of the "Possessory rights'
in question, in internatioual relations, which are certainly conclusive.
As to the more domestic question of the rights of the Chief Fac.
tors and Chief Traders relatvely to the Hudson's Bay Company quoad
realty in England, viz proceeds of sale of the Company's House (Office)
in Fen church street, London, a decision, in Chancery, is given, of date
26th February 1868, in London, most positively, and strongly as possible,
in the sense contended for in the present instance.
How the legal opinion referred to, about or after the date of that
decision—reported, at length, in the London Times 27th February
1868—in refusal, by the Company, of such claim, could disregard such
high judicial decision on such point, in its bearing a fortiori on the
present case, remains to be seen. The case referred to is given in this
pamphlet as reported, viz, MacTavish et al. vs. The Hudson's Bay
Company..   TREATY
Dated 15th June, 1846.—Ratified   London, England,
7th July,  1846.
EXTRACTS.
Article III.
"In the future appropriation,of the Territory south of the 49th
parallel of North Latitude as provided in Article I. of the said Treaty,
the possessory rights of the Hudson's Bay Company, and of all British
subjects who might be already * in the occupation of land or other
property lawfully acquired within the said Territory shall be rtspected."
Article IV.
" The farms, lands and other property of every discription belonging
to the Puget Sound Agricultural Company on the North side of the
Columbia River, shall be confirmed to the said Company. In case,
however, the situation of those farms and lands should be considered
by the United States to be of public importance, and the United States
should signify a desire to obtain possession of the whole or of any part
thereof, the property so acquired shall be transferred to the said Government at a proper valuation, to 'be agreed on between the parties. "
CLAIM OF THE HUDSON'S BAY COMPANY.
These " Possesory Rights" were, as explained by Sir George
Simpson, Trade Governor of the Company, when examined before the
Commons Committee of 1856-7 on the subject, acquired by them
under License from the Crown for exclusive trade in that region. The
answers on this point are to questions Nos " 1108" to "1124 " in the
official (blue book) report of said Committee.
♦The italisization, here and elsewhere in this pamphlet, is by the author, in argument. 13
They were essentially trade rights, and possessions, viz of lands "as
in fee simple". The admissions of the United States authorities on the
subject, including the published opinions of the Secretary of State, for
the time being, of that Government, and conducting for it the negotiations leading to the Treaty, viz, the Honourable Daniel Webster, and
after him, at a stage subsequent to the Treaty, the opinion of the Honourable Mr. Stanton, Attorney General for the United States. To these
may be added, as advanced at the time, the following judicial decisions
ad rem by the Supreme Court, U. S. : 6 Cranch 87-8; Wheaton 535 j
9 Peters 74 ; 13 Peters 192 ; also, specially, the judgment of Mr. Justice
Catfbn in Smith vs. Clarke, 13 Peters, 201.
Also, on the other side, but in perfect concurrence, the opinion of
the Honourable Justice Charles Dewey Day, of the Canadian Bench, on
the part of Great Britain, for indemnity.
The former declare, unanimously, as to the status of these "Possessory Rights" : the latter does so, too, and further, specifically declares
as to, and in favor of the rigths of the Chief Factors and Chief Traders
of the Hudson's Bay Company, as constituent partners of that body and
entitled to share in the indemnity accordingly—the whole as now, herein, urged.
As to the nature and legal character, and political bearing of these
claims, an extract is offered from the memorial or statement of the case,
as laid by Judge Day on behalf of the Hudson's Bay Company as
British subjects in the purview of the Treaty, before the Commissioners
appointed by the respective Governments to take evidence and report
as to the value of the rights and subjects for Indemnity in question.
On the particular question of the position and rights of the Fur
Traders, id est, interest arising from the Fur Trade itself on the region
in question, Judge Day, on page 18 of his memorial and argument,
states :
Clause 7. " The British statement annexed to the protocol of the
16th December" (November?) "of 1826 *, distinctly and repeatedly affirms
the establishement and possession of posts as well to the Southward as to the
Northward of the Columbia river by British subjects f (neceessarily meaning
* By the Right Honourable Mr. Huskisson, M. P , with reference to Treaty of 1825,
with Russia.
t The only 'British subjects"—yea the only White men of any nationality then
there, were the Officers and Servants of the Hudson's Bay Company, which then included
those of the then extinct North West Fur Company and the writer's father as partner and
thief representative there of the Hudson's Bay Company proper. Si". McL. 14
the North West and Hudson's Bay Companies); and in strong and pointed
terms avows the determination of the Government to protect the interest
and establishments which British industry and enterprise have created both
as regards settlement, freedom of trade, and navigation.
Clause 8. " The country known as Oregon, extented far to the north
of the 49th parallel of North Latitude. It reached to the 54th degree and
was all included in the claim of the United States. The establishments
of the Hudson's Bay Company over the whole region originated in precisely
the same manner and under the same circumstancs as those on the Columbia River. They were indeed parts of the entire system of settlements in
Oregon, comprehended in the recognition already stated. And the British
Government granted in its confirmations of title to lands there, 3080 acres
of land in Vancouver's Island .* which, as shown by actual sales, were worth
more than the whole of the present Land Claim at Fort Vancouver."
The Lands referred to were held in and for the Fur Trade, and
were accounted for as such in the Company's annual accounts to the
partners, viz, trade partners, as well as to the holders of the 6o shares out
of the ioo shares forming the whole stock or capital of the Company as
hereinafter stated and explained. That the lands were so held, in and
for the Fur Trade, appears clearly from the following circular on the
subject from the Secretary (Fraser) of the Company, addressed to the
Chief Factors and Chief Traders of the Company, on their enquiry on
the subject:
Extract. " In reply, I am directed " {id est by the Board of Directors
of the Company in London) "that the first sale of the Fur Trade Lands was
in 1853. Since that period sales have been effected every year down to
1861, inclusive, with the exception of 1857, when there were no sales : and
the proceeds of such sales have invariably been carried to the credit of the
Fur Trade, for the oufil during which the sales were effected."
The cost of such lands, like all cost and outlay by the Company as
per rule of partnership agreement, ad hoc, as hereinafter shown, had
been charged to the debit of said trade accounts, and therefore, by the
same rule, the proceeds of sale had to go to the credit side.
Present site of the City of Victoria, and Harbour of Esquimault. 15
EVIDENCE, ASfeTHE   "POSSESSORY RIGHTS", GIVEN TO
COMMONS  COMMITTEE OF  1856-7.
Examination of Sir George Simpson, Trade Governor in America,
of the Hudson's Bay Company.
Question 1108—(by Right Honourable Edward Ellice, M.P. Member of
Committee). You have possessory rights, I believe, under the Treaty
(Oregon Treaty) ?
Ans.—Yes.
Q. 1109—(By Roebuck M. P.).  But has not Oregon been given up by
Treaty ?
Ans.—By that Treaty our possessory rights are retained.
Q. 1110.—What possessory rights have you?
Ans.—We have various establishments, pasture grounds, hunting
grounds.    We claim very large possessory rights.
Q. 1111.—Have you not also the free navigation of the river ?
Ans.—Yes.
Q. 1112.—(Roebuck). What do you mean by possessory rights ? do you
mean rights under the charter ?
Ans.—Rights as British subjects previously to the Treaty.
Q. 1113.—Had you possession of land?
Ans—We had possession of land.
Q. 1114.—How did you acquire it?
Ans.—Under License to trade.
Q. 1115.—But that is not possession of land?
Ans.—Yes, under the Licence to trade we had various possessions
in the country.
Q. 1110. —Do you understand that a license to trade gives you possession
of the land ?
Ans.—We understood so.
Q. 1117.—What is the interpretation which you give to the words 'right
to trade'—that it gives rights to land? "
Ans,—We conceive so.
Q. 1118.—In fee simple?
Ans.—I do not say under what tenure, but we consider that it
gives us a right to the land,
Q. 1119.—So that when you received by charter from the Crown a monopoly to trade over certain portions of territory, you believe that
the whole of that territory was ceded to you ?
Ans.—No !—not the whole of the territory that we trade over, but
the territory we bring into cultivation.
Q. 1120.-How
Ans. —I really cannot tell.
Q. 1121.—Did you bring 100 acres ?
Ans. —Five thousand acres,
Q. 1122.—Into cultivation?
Ans.—Yes.
Q. 1123.—And those are all the possessory rights which you have ?
Ans.—We have various establishments all over Oregon ; we have
them in various parts of the Columbia River and Puget Sound.
Q. 1124—(Right Hon. Edward Ellice). Are you aware that, in addition,
there is the Puget Sound Company who also have those rights reserved under the Treaty ?
Ans.—Yes,—that is an offshoot of the Hudson's Bay Company;
an Agricultural Establishment formed by the Hudson's Bay
Company, or parties connected with or interested in the Hudson's Bay Company encouraged by the Government of the day."
much land did you bring into cultivation in Oregon ? 16
LEGAL AND POLITICAL CHARACTER OF SUCH
POSSESSORY RIGHTS.     |
Opinion of Hon. Daniel Webster, Secretary of State U. S. of A.
as to same;
Also of Hon. Attorney General Stanton, U. S. A.
In page 35 of his memorial, ad hoc, Judge Day quotes, approvingly,
in support of his argument, the following admissive avowal on the part
of Mr. Webster when in negotiation for the Treaty. The doctrine
is, and has ever been, since the organization of the great American
Republic, one of cardinal public policy in it, based on the principle—
one of natural law—that the primitive wild becomes his who first in
good faith, and honourable endeavour, utilizes it to public weal, while
primarily serving, probably, merely personal behest.
In American phraseology it is known as " Squatter Sovereignty " :
a claim repugned in general European polity ; but supremely respected
in the virgin field of all America. In this connection it is ever to be
borne in mind, that the region in question—traversed so far back as
1804-5 by tne National United States Expedition, for exploration and
national capture and annexation under Lewis and Clarke, in sequence to
the primal discovery of the before then (to all civilized nations) mythic
"Great River of the West", by Captain Gray, of the Commercial Marine
of the United States of America, with his ship "Columbia" on 22nd
May 1792 and who thereby, nem. con. gave baptism to that river, and
the vast region—the richest in the world, saith the writer, who for years
was a traveller through it, and sojourner there with his father, and saw,
and in time gave tongue to the world of its wondrous wealth.
From 1792 to the Treaty, it was, practically a " No Man's Land "
—save of the primitive "lords"—the swarming bands of utmost savagery
—who then, invincibly, held it.
Quoad Britain and the United States, in so far as, from Discovery
and commercial utilization, and settlement (if any) any national "rights
were acquired, it was common"—or "disputed"—territory. 2ill the
Treaty it was not in the national domain of either power.
On that plane—as a basis—were the rights and claims in question
discussed; and the Indemnity claimed, and awarded. Thus, the Treaty
was—from the nature of the case—suigeneris—a law unto itself, in this 17
regard ; evoking, in the settlement of its incidental matters—such as the
Indemnity—a special regard of, and into the special, and, in many
respects, exceptional circumstances of the case. In such interpretation,
the parties themselves, to the Treaty, are best exponents, and to one for
the other, in adverse position, there can be no objection; it is highest
evidence.
In this sense the writer advances the following quotation from Mr.
Webster, who conducted the negotiation on the part of the Government of the United States :
" The local extent "—said he—" of these Possessory Rights it may
be in some degree difficult to fix or define. They must depend upon
facts, and the nature of the occupation ; wherever there has been a possession, according to the use originally intended, there, and to that extent,
the possessory right attaches."
On the same point, Judge Day, in the same page (35) of his memorial gives the opinion of another eminent member of the United
States Government, viz, Attorney General Mr. Stanton, when, long
after the Treaty, finally dissussing it for the determination of the amount
of the indemnity to be paid. This was, more particularly, on the legal
aspects of the case, as avowed by himself, in arriving at or advising such
determination.
EXTRACT
I The term of the Treaty "Possessory Rights", being a relative
" term, is to be interpreted according to the subject-matter, the tiature and
"purpose of possession, even in case of intruders without color of
" title, holding against the rightful owner. Settler's possessions have
" been denned in the State of Pennsylvania,—where such claims have
" been much discussed—as embracing the whole of an unceded tract
" where the settler has entered, claiming and exercising ownership, put-
" ting up buildings^ clearing and fencing more or less, using it according
" to the custom, of the country. " * * *
Closing with the emphatic admission, in his own words : " For it
" has been repeatedtly decided" (here giving the authorities already
stated, viz Cranch, Wheaton and Peters, and referring to others) "de
"cided by the Supreme Court of the United States, as a settledprinciple
" that the right ot occupancy is as sacred as a fee simple, and that the
"possessors of hunting grounds are to be protected in their possession,
"although the fee vestedin the State.   The right of occupancy in hunting 18
"grounds has been protected by the political power and respected by the
" Courts. So"—as said Mr. Justice Cation, in Smith vs. Clarke, 13 Peters
201—"this Court, and the State Courts, have universally held." So, it
may be said, have all Courts and all States, in America, where, throughout, the hunter has ever been the proto-pioneer of settlement. Giving in
his bold adventure ; life in hand ; his all of earth ; oft in suffering dire;
and his coffinless bones unhonoured, to the emprise of his race. Thus it
was, in a sense, with the writer's father, in those very wilds, so won by
him and the brave band he there led. But, to proceed with the argument.
POSITION AND RIGHTS
OF CHIEF FACTORS AND CHIEF TRADERS IN  THE  HUDSON'S BAY COMPANY
Al DATE OF THE TREATY.
This is governed by the "Deed Poll" by and between "the Governor
"and Company of Adventurers of England trading into Hudson's Bay"
(their Charter name) "of the First Part; and certain persons therein
" described as William McGillivray, of Montreal, in the province of
"Lower Canada, Esquire; Simon McGillivray, of Suffolk Lane, in the
"City of London, Merchant; and Edward Ellice, of Spring-Gardens, in
" the County of Middlesex, Esquire, who together with certain other per-
" sons therein"—to wit in " Indenture" of the same date, between the
" same parties—"referred to, are thereinafter described as being there-
" for or then engaged in co-partnership in 'carrying on a trade, in pur-
" chasing and receiving, by way of barter from the Indians in Upper
"and Lower Canada, and in the other parts of North America, or under
"the name or firm of North West Company, of the Second Part." The
Indenture and Deed Poll bear date 26th March 1821.
The Deed Poll goes on to say, in explanation of the subjects, scope
and manner of carrying out the said " partnership, " and in difinition of
the rights, joint, several, and relative of the said parties, as follows :
Clause 1. "It is, amongst other things, provided and agreed, by and
between the parties to the Indenture now in recital, that the trade in purchasing and receiving, by way of barter, from the Indians, furs, peltries,
and other articles thereinbefore mentioned to have been theretofore carried on by the said Governor and Company, and the said North West
Company, as herein mentioned, should for the space of twenty-one years,
commencing with the outfit of the year 1821, and ending with the returns
of the outfit of the year 1841, but subject, nevertheless, to certain terms
thereinafter contained, be carried on by and in the name of the said Gover-
VI 19
nor and Company, and their successors, exclusively, as well in the territory
of the said Governor and Conpany, as in any other part or parts of North
America, which might from time to time be fixed upon by the said Governor and Company, and their successors ; and that th6 business of the said
concern in England, should be transacted at the Hudson's Bay House, in
London, or at such other place or places as the said Governor and Company,
and their successors, should from time to time think fit, and that the said
Governor and Company, and their successors, and the said parties thereto,
of the second part, should respectively provide one equal share of the Capital
Stock to be employed in carrying on the said trade under the Indenture
now in recital, and to be made up in the manner therein mentioned, and
the expenses, from, and after the time therein mentioned, and during the
said term of tweny-one years, of all the establishments of the said Governor
and Company, and their successors in England and in the territory granted
by their Charter, and also in their establishments in any other part or parts
of A or'th America where the said trade should be carried On under the
Indenture now in recital, including in such expenses the salaries of the
Governor and Committee of the said Hudson's Bay Company, and of their
Governors, to be by them appointed, for their territories in Hudson's Bay,
and of all Officers for the time being, both at home and abroad, of the said
Governor and Company, and their successors, and including also divers
other expences enumerated in the Indenture now in recital, and all other
expenses, and all losses or damages, which should or might be incurred
or sustained in carrying on the said trade, or in any wise relating thereto,
should from time to time, and previously to the division therein, and in.
part thereinafter mentioned of the clear gains and profits of the said concern, be paid, allowed and borne, by, and out of the proceeds of the current
returns ai ising from the said trade; and in case the same should be deficient, then one moiety thereof to be paid by the said Governor and Company,
and their successors, and the other moiety thereof by the said parties
thereto of the second part; with a declaration that no expense relating to
colonization, and not thereinbefore expressly provided for, or any concern
or business which should be carried on by the said Governor and Company,
and their successors, for their benefit, separate from the said trade or concern under the Indenture now in recital, was to form any charge under the
Indenture now in recital."
SHARES AND ACCOUNTS.
Clause 2 in recital in Deed Poll in preamble, reads thus :
"And it was also provided, that the clear gains and profits arising from
the said concern hould be divided into one hundred equal shares, forty
shares whereof'were to belong to such persons as should from time to time
be, by the said Governor and Company, appointed Chief factors and Chief
Traders for the purposes of the said trade, and to such persons as should
thereafter be appointed to succed them : it being thereby declared to be the
true intent and meaning of the parties thereto, that the said forty shares
should always be appropriated as a remuneration to the persons actually
employed in conducting the trade in North America, or as a temporary
provision to persons retiring from such employment. Provided, that as
often as there should be a total loss upon the returns of any one year, forty
equal one-hundredth shares of such total loss should be set off and made-
good out of the said forty shares, so to be appropriated as foresaid, of the
gains and profits arising from the trade of the said concern in the ensuing
year or years, until such forty shares of loss should have been fully made
good. 20
That inventories of such trading goods, and stores, as on the first day
of June, or the usual period in every succeding year, during the said term
of twenty-one years, may remain on hand at the serveral depots, stations
or posts in North America, to be occupied in carrying on the said trade,
as the part undisposed of to the Indians of the outfit of the year then immediately preceding, and shall be made a charge in the accounts of the
oufit of the year then next following, and the same goods, provisions, and
stores shall be considered as part of the outfit of the year then next following : provided always, that in such inventories and valuations shall be included all debts which, on such first day of June, or such usual period, may
be owing to the said concern, from traders, clerks, guides, interpreters,
canoemen, and labourers, except Indians, for advances and supplies, and
that such debts shall be valued at a fair estimate; but debts due from Indians shall be included without any valuation being put on them.
And it was thereby further provided, that for the purpose of ascertaining from time to time the gains and the profits, or as the casejmight be, the
losses of or to the said concern and the true state and condition of the stock
and capital of the said concern, a general account should on the 1st day
of June, during the continuance of the said concern, be stated and made
out in the manner following (that is to say):—In stating and making out
such account on the 1st day of June 1823, there should be placed on the
DEBIT.
side of the said account, the amounts of the respective valuations, to be
made as therein mentioned, and which were to form part of the outfit of
the year 1821, as therein mentioned, of the goods, provisions, stores, supplies, and other articles, of which inventories were to be taken as therein
mentioned, and which were to form part of the outfit of the year 1821, as
therein mentioned, together with interest at £5" (five pounds sterling) per centum per annum, on such amounts, from the 1st day of June
1821 to the 1st day of June 1823, and also the amounts of the charge to be
respectively made as therein mentioned by the said parties, in respect of the'
goods, provisions, and stores ordered and to be ordered for the outfit of the
year 1821, as therein mentioned, together with interest at the same rate,
on the sums forming such amounts, from the respective times of the payment of the same sums to the 1st day of June 1823, and also the amounts
of the valuation to be made as therein mentioned, of the debits which
might be owing from traders, clerks, guides, interpreters, canoemen, labourers end other persons besides Indians, as therein mentioned, on the said
1st of June, or at the respective usual period next succeeding to tne date
of the said Indenture, for taking inventories as therein mentioned, together
with interest at the same rate, on such amounts on the 1st day of June 1821
to the 1st day of June 1823 : and also the amounts of the valuation, to be
made as therein mentioned, of the Hudson's Bay House, in London, with
appurtenances, and of the ships of which a valuation was to be madeas
therein mentioned, together with interest at the same rate on such amount
for the period last aforesaid, and also the amounts of such of the expenses
to be incurred up to the 1st day of June 1822 in respect of the establishment^
of the said Governor and Company, and their successors; and in respect
of the said trade and otherwise as therein mentioned, as were to be paid,
allowed and borne by and out of the current returns arising from the said
trade or otherwise, as therein mentioned, together with interest at the same
rate on the amount of such expenses from the respective times of payment
thereof up to the 1st day of June 1823 :
And there should be placed on the
CREDIT
side of the account the amount of the valuation, to be made at therein 21
mentioned, of such trading goods, provisions, and stores as on the 1st day
of June, of the usual period of closing the spring trade of 1822, might
remain on hand at the said several depots, stations or posts as aforesaid,
and of the debts to be included in such valuation as aforesaid, and also the
amount of the then value of the Hudson's Bay House, for the time being,
in London, with its appurtenances, and any other property which should
■belong to the concern on the 1st day of June 1822, together with interest
at the rate aforesaid on both amounts, from the t-aid 1st day of June 1822
to the 1st day of June 1823, and also the next amount to arise from the sale
of the furs, peltries, and other articles to be received as the returns of the
outfit of the year 1821 after deducting all expenses attending or relating to
the sale thereof, together with interest at the same rate on the sums forming
such net amount, from the respective prompt" (sic) "days of the sale of the
said furs, peltries, and other articles to the 1st day of June 1823, and that
the balance of the said general account should, in the event of such balance
being on the credit side of the said account, be deemed to be the gains and
profits of the outfit of the year 1821 ; and the balance of the said interest
account should be divided and paid, one moiety to the Hudson's Bay Company and the other moiety to the parties thereto of the second part, their
executors or administrators ; and that the general account to be stated and
made out on the 1st day of June 1834, and on every succeeding 1st day of
June during the continuance of the said concern, should be stated and made
out, and adjusted and settled, upon the like principle as the account to be
stated and made out on the 1st day of June 1823 and in the same manner
as far as circumstances would admit, in regard to the details and particulars
thereof : And after every such general account should be settled, the clear
gains and profits or the losses, as the case might be, should be divided
amongst and be paid to or by the parties entitled or liable under the said
Indenture to receive or bear the same ; and if from any cause the said gains
and profits or losses should not be paid at the expiration of fourteen days
after such 1st day of June, then with interest at £5 per centum per annum,
from the expiration of the said fourteen days, but subject, to the provisions
therein contained, in regard to the non-delivery by the said parties thereto
of the second part, their executors, and administrators, of possession of
such depots, and premises as therein mentioned."
The above extracts are taken from the copy of the said Deed Poll,
with the official endorsement thereon as being for John McLeod, senr.
C."J? (Chief Trader) of and belonging to the writer's father and in his
possession, rightfully, as administrator of his estate: the document is a
printed one.
The only other clause in its preample is with regard to the appointment of "Governors"—so therein called—to wit two, on fixed salaries
—not as partners—to co-operate with the trade partners (Chief Factors
and Chief Traders) to—as the Deed said— "form a Council, and be
competent to carry into effect all acts authorized by the Charter, and
to execute all By-laws and regulalions that might be made by the
Governor and Company from time to time ; the said Councils of Chief
Factors and Chief Traders to determine the necessary outfits and arrangements of the season." 9.9
TRADE PARTNERS.
Under the 4th clause in the said Deed Poll, certain persons—
twenty-five are named for appointment forthwith/—as "Chief Factors
for the superintendence of the said trade, as well within the territory
of the said Governor and Company granted by the said charter creating
the said Company, as other parts of North America where the said trade
might be canied on under the said Charter and the said recited Indenture or either of them."   These are words of that clause :
Clause fifth, runs thus : "And whereas the said Governor and Company are about to appoint by commission under their common seal"
certain persons—twenty-eight—amongst them, by name in the Deed,
"John McLeod" (father of the undersigned) who had, for ten years, just
before, been a leading officer doing eminent service for the Hudson's
Bay Company, in its struggle with the North-West Company. In defining in this clause the general status of these persons in the Company,
the text of the Deed is as follows: "To be Chief Traders for conducting the said trade in their respective departments under the Governor and Council thereinbefore referred to, and also hereinafter mentioned, as well within the said territories of the said Governor and
Company so granted by their said charter as aforesaid, as other parts
of North America where the said trade might be carried on under the
said charter and the said recited indenture or either of them."
The appointment was made forthwith accordingly, while the said
McLeod was in supreme charge of the English River District, then the
most important and most keenly tnilitant in the Hudson's Bay Company's field of service.
In remuneration, and as stipulated price for such service, it was
solemnly, and in covenant, stated in the said Deed—Clause 4th—"And
whereas the said Governor and Company are desirous of appointing"
(sic) "the said forty shares of the clear gains and profits arising from the
said concern and so reserved, to be appointed by them" (sic) "under
and by virtue of the said recited Indenture, and of making such conditions, rules, laws, and regulations for the benefit of the said trade, and
of the parties interested therein under the same Indenture, as are thereinafter contained in that behalf."
The Deed Poll then goes on to say :
'Now know ye—that the said Governor and Company do hereby
declare and direct that the said forty shares shall be subdivided into 23
other shares for the benefit of the several persons respectively mentioned
and named in the several articles hereinafter contained in that behalf,
and that the same shall be held and the said trade and concern shall
be carried on and managed under the restrictions, rules and regulations
hereinafter contained that is to say :
I Article I.  The said forty shares of the said partnership concern
I shall be divided into eighty-five shares of equal amount.
III. Each of them, the said twenty-five persons to be appointed
Chief Factors as aforesaid, shall, if his appointment to the office of
Chief Factor as aforesaid shall take place, be entitled to two of the said
eighty-five shares, for profit and loss, and in case oiloss shall in manner
aforesaid, be liable to make good the same ; and if the same shall not
take place, or upon his death, or removal from office, the same or the
like shares, both for profit and loss shall devolve upon the person who
for the time being, and from time to time shall succeed him in such
office of Chief Factor as aforesaid; it being the true intent and meaning
of this article that each person who, for the time being, shall fill the
office of Chief Factor to the said concern, shall during his continuance
to fill the office, in case the said concern shall so long continue, be
interested in two of the said eighty-fifth shares in the said concern, both
for profit and loss, as a compensation for his performance of the duties
hereby, or by the aforesaid Indenture imposed or to be imposed on
him as such Chief Factor.
I III. Each of them, the said twenty-eight persons, so to be appointed chief traders as afoseraid, shall, if his appointment to such
"office of Chief Trader as aforesaid, shall take place, be entitled to one
of the said eighty-fifth shares, for p?'ofitand loss, and in case of loss shall
in manner aforesaid, be liable to make good the same, and if the same
shall not take place, or upon his death or removal from office, the same
or the like share shall devolve upon the person who, for the time being,
and from time to time, shall succeed him in such office of Chief Trader
as aforesaid; it being the true intent and meaning of the present article
that each person who for the time being, shall fill the office of Chief
Trader to the said concern, shall, during his continuance to fill such
office, in case the same concern shall so long continue, be interested in
the one eighty-fifth share in the same concern, both for profit and loss, as
a compensation for his performance of the duties hereby, or by the said
recited Indenture, imposed upon him as such Chief Trader as aforesaid. 24
"IV. The remaining seven shares of the said eighty-five shares, both
of profit and loss, shall be appropriated as follows, namely—four of
such seven shares shall be reserved to be given to the old servants, now
or lately, in the employment of the said Governor and Company, in
such proportions, and with, under, and subject to such restrictions and
regulations as the said Governor and Company shall think proper for
a period not exceeding the first seven years of the said concern and the
three remaining shares shall be disposed of to such persons lately
employed by the said North-West Company, and then having an interest
in the concern of the same Company as the said William McGillivray,
Simon McGillivray and Edward Ellice. or the survivors or survivor of
them, or the executors and administrators of such survivor shall .think
proper, and for the like period of seven years."
The article closes with provision as to said seven shares under
Article XXXVI, following, of the Deed Poll, as to vacancies of Chief Factors -and Chief Traders, which being unnecessary to the present argument, need not be cited.
In case of the death of a Chief Factor or Chief Trader during service the provision, as to his interest and succession is stated thus in the
Deed Poll:
" Article XXV. In the event of the death of any Chief Factor or
Chief Trader, his representatives shall be entitled to the benefit of his share
or shares, as the case may be, under Article II or III to the end of the year
in which he died, such year being considered as ending on each first day of
June, and if such death shall happen, before the party dying shall have
wintered. in North America five years his representatives shall have in
addition an half of such share or shares for four years, from the end of
the year in which the party shall die, and if his death shall happen
after having wintered five years then his representatives shall be put on
the same footing as if the party had retired, and been entitled to a six
year's interest in the said concern under Article XXIV. " [That is with one
whole share of two eighty-fifths, or one eighty-fifth, as the case may be,
for one year after that of death, and half for noxt six years.]
That article, on this point, runs thus :
'' And in case of a party retiring after wintering five years, he shall be
allowed to hold his share or shares, as the case may be, for one year after
his retirement, and half of his said share or shares for the next succeeding
six yeras, to be respectively held by him and his representatives respectively
during the respective periods mentioned in this Article."
Under Articles 25 and 26 a power of sale, with right of pre-emption to the Company, under.notice, is given to Chief Factors and Chief
Traders, and their representatives.
With regard to the rendering and payment of the annual accounts
a special Article, numbered XXXII in the Deed Poll, runs thus : 25
r "And by the same or like outward-bound ships of the season, each
Chief Factor, Chief Trader, and each Clerk respectively, in the service, shall
have his private account transmitted to him, and the balance shall be
either paid to him by bills drawn by him, and made payable in London,
on every fifteenth day of April, or be paid to any person authorized as his
agent to receive the same, and to settle such account or accounts, for the
• time being, on the same being made up on each first day of June aforesaid,
or if the said party prefer to leave such balance in the hands of the said
Governor and Company, and notify the same to them, they will either
allow him lawful interest for the same, or, at the option of the said Governor and Company, invest the same in the purchase of Parliamentary Stock,
and receive, and when received, credit his account with dividends thereof."
Article XXXIII provides :
'' No Chief Factor or Chief Trader whomay retire, or the representatives of such of them as may die, shall after such retirement or death, be
at liberty, or have any right to inspect or question the accounts mentioned
in Article XXXI" (viz, annual accounts to residents in North America)" but
shall respectively be concluded as to them, by the certificate of the said
Governor and Company as to their correctness, as far as respects their shares
and interest respectively."
Article XXXIV requires registry in the books of the Governor and
Company of Instruments of assignment of shares or interest of Chief
Factors and Chief Traders or their representatives, within eighteen
months after the "assignee's title or claim shall issue."
Article XXXV requires Chief Factors and Chief Traders to enter,
within certain prescribed times, "into a covenant or agreement with the
"said Governor and Company for the due observance and performance
" by them the said Chief Factors and Chief Traders, of all the Con-
" ditions, Agreements, Rules and Regulations mentioned and contained
" in these presents ; and also all other rules and regulations to be from
" time to time duly made pursuant to the said recited Indenture, and
" the terms thereof, as far as the same shall be applicable to them
" respectively ; And for the payment to the said Governor and Company
" of one thousand pounds as liquidated damages for every wilful breach of
'" such conditions, agreements, rules, and regulations, by the parties so
" respectively covenanting, and for the acceptance by them respectively
" of the several provisions hereby made, or to be made for them and
" every such appointment shall be voidable in case by the appointee
"therein named shall omit or refuse to enter into such covenantor
"agreement, within the time hereinbefore mentioned on that bahalf."
The last Article (XXXVI) of the Deed Poll is important as giving
its imprifnatur to  the   whole " Covenant and Agreement" as being 26
essentially synallagmatic, and relatively obligatory on bothparties : with
an admission, express or implied, of the dominancy of the Trade interest
in the said " Concern "—so called—as more particularly represented by
the Chief Factors and Chief Traders. The text—ipsissima verba—of
that article is as follows :
" The several articles, matters, and things thereinbefore contained,
shall be binding on the said Governor and Company, and shall continue
in force during the said concern as for as relates to articles i, n, in, iv,
xv, xxn, xxin, xxiv, xxv, xxviii, xxix. xxxi and xxxii, without any
right on the part of the said Governor and Company, or their Committee for the time being, to "defeat, alter or vary the same, either in the
whole, or in part, without the consent, in writing, of the majority of Chief
Factors and Chief Traders for the time being, respectively and as far as
relates to the remaining articles contained in these presents, unless in
the meantime, and until determined, altered, or varied by the said
Governor and Company, in conformity to their power reserved to them
under their said Charter, or the said recited Indenture, and until sufficient notice thereof to be given by the said Governor and Company of
such determination, alteration, or variance ; and all persons having any
interest, or being in anywise entitled, for the time being, under the said
articles, or any of them, shall or may be entitled to proceed against the
said Governor and Company, in case of any breach on their part, of any
one or more of the said articles." 27
JOHN McLEOD, "Senior",
Chief Trader H. B. C.
The said John McLeod, named in the said Deed Poll, as one of
the Chief Traders to be forthwith appointed, was thereafter forthwith
appointed, and with as little delay as possible, did all that was required
by the said Deed Poll and recited Indenture, to constitute him a partner
in the said " Concern " as aforesaid, wifh its incidental rights, obligations,
and liabilitiles as aforesaid.
That he did so, appears, incontestably, from thefact :
That when in incidental sequence to the coalition of the two
rival fur companies in question, formal delivery under inventories, had
to be made of all the trade posts, and trade property generally of the
North-West Company on the West side of the Rocky Mountains to " the
Governor and Company of Adventurers of England trading into Hudson's Bay ", the said John McLeod, alone, with no other garde de corps
than his wife and two young children—the writer one of them—was
selected and specially delegated to make such acceptance and formally
assume proprietary possession in the name and behalf of that company.
He had ever been, since his engagement with the Hudson's Bay Company, in 1811, a leading officer of that body in their field of contest
with the North-West Company; and as proved by abundant official
record, judicial and parliamentary, and as now matter of history in
foreign standard authorities—with every success.
The service, then, in 1822, required of him, viz., to cross "the
mountain," and the Pacific Slope to the sea, and there, formally, receive the sword of surrender from a whilome foe—who, on the East
side of their rampart of enterprise, had felt the edge of his service in the
van of the fight, was one of special danger and difficulty. As proved
before the Commons Committee of 1857, by the testimony of Sir
George Simpson and others, two-thirds of the total Indian population on
the fields of work of the two Companies, were on the West of the
Rocky Mountains; where, up to 1822, the Hudson's Bay Company
had had no trading establishments, and where the North-West Company, and a few American (U.S.) Fur Traders, and on the Coast, the
Russian Fur Company, to the exclusion of the Hudson's Bay Company,
alone held the Indian trade of the country. 28
The Indians themselves were, in those times especially, ever a
most dangerous element to deal with, being naturally independent,
turbulent, and hostile, and ever to be guarded against, at arms—night
and day—and in every position and movement, throughout the country.
Add to that the fact that during the six years immediately preceding,
viz., ever since 1816 when by the capture of Fort William, on the
western shore of Lake Superior, by the Earl of Selkirk, and of the
whole line of trade forts of the North-West Company, along the Red
River, the Assiniboine, and northward to the McKenzie Basin, chiefly
under the leading, in the field, of said McLeod, from 1815 to 1821, the
sole line of supply for the trade of the Pacific Slope of the North-West
Company had been cut off, and the trade itself there paralyzed; for that
company had no shipping to supplement it by way of the Pacific. The
result was that the whole native population of the West were exasperated
to wildest hostility, against the Whites, and the Whites themselves
huddled in their fastened forts, starving more or less, some killed, and
ever under arms in guard, held their own with a heroism which no
" Indemnity"—in money—could adequately compensate or honour.
The instructions, from the Supreme Directorate in London to said
McLeod as they appear in original in the hands of the writer—was to at
once proceed to Fort George (formerly Astoria) at the mouth of the
Columbia, and there, in concert with certain leading partners or officers
of the North-West Company, included as Chief Factors or Chief Traders
of the new Hudson's Bay Company or " Coalition " as it was by themselves, more strictly properly called, to reorganize and specially to extend
to the Coast and Ocean beyond (what the North-West Company never
had done) the general trade of the company. This, then and there, he
(McLeod) with his few colleagues there, then, viz,, Dr John
McLoughlin and James McMillan, the sole Chief Factor and Chief
Trader^respectively then there, most effectively did.
In that difficult task, the part of the sole representative proper,
then there, of the Hudson's Bay Company, was exceptionally difficult.
It was, however, thoroughly accomplished'tto the utmost satisfaction and
perfect approval of the Company, as represented at its Supreme Trade
Council held in York Factory in July, 1826, where, then, said McLeodj
personally, delivered his report, traversing, for the purpose, the continent
from ocean to ocean, in a manner and under physical difficulties,
probably unparalleled  in the story  of travel,   and  which has   envoked 29
special public record, in various ways. Amongst these, as authoritative,
and emanating from one master of the subject, and universally recognized as a distinguished expert in such work, the writer would here give,
as evidence ad rem, and as proper to the present argument, the report
of Mr. Sandford Fleming, C. M. G., &c, of the expedition in question,
in his Presidental Address (as President of the Royal Society of Canada)
in 1889, under the general head " Expeditions to the Pacific," pp.
113-114:
" Travels of Mr. John McLeod, 1822-1826."
" After the union of the Hudson's Bay Company with the North-West
Company, in 1821, Mr. John McLeod was the first officer to cross the Rocky
Mountains from the east.
Mr. McLeod entered the service of the old Hudson's Bay Company in
1811, and for the ten years previously to the union of the two, he was a
zealous participant in the contest will the North-West Company. He was
detailed to accompany and assist Lord Selkirk's first brigade of colonists
from York Factory to Red River ; and he established trading ports at a
number of places in the prairie region, to intercept the trade of the rival
company.
Mr. McLeod when selected by the united companies to proceed to the
West side of the Rocky Mountains, was stationed at Green Lake, about 200
miles north of Fort Carlton. He set out in 1822, with his wife and two
young children. He reached Athabasca River, and crossed the Mountains
by the Athabasca Pass to the Columbia, and descended the river to its
mouth. In the following years he was engaged at different posts in trade
operations; during this time he left Kamloops, followed the Thompson, and
descended the Fraser to the Strait of Georgia, Mr. McLeod was in the
Columbia district when it was decided to change the headquarters of the
company. Fort George was open to some objections, and another site was
finally selected on the northern bank of the river, about a hundred miles
from the mouth. At this point a new central post was established in 1825,
on a large and permanent scale, called, in honour of the famous navigator.
Fort Vancouver. The new headquarters of the company were placed on the
northern bank of the river, in order that it might be indisputably on British
soil: there ivas no probability, at that date, of the intercolonial boundary
being established to the north of the Columbia.
In March 1826, Mr. McLeod left Fort Vancouver to proceed eastward.-
He was accompanied by Mr. Edward Ermantinger, and Mr. Douglas the
distinguished botanist.
The crew consisted of sixteen men, two of whom were Sandwich
Islanders. Their route took them to Okanagan and Spokane. They
ascended the Columbia to Boat Encampment, the river at the time being
much obstructed by ice. The Mountains were crossed by the Athabasca
Pass, then covered with deep snow, * and with much difficulty and some
* " Deep Snow. "—For four hundred miles below Boat Encampment the river in rising
spring flood—where not in lake—was between walls of snow, perpendicular, from six to
ten feet iu depth, and in the Upper Arrow Lake, the ice had to be broken through with
axes. Ermantinger and Douglas, and three calves and three pigs—the first of their kind
in the region—had been left with one of the two boats of » men each, at Spokane, about
500 miles below Boat Encampment.
At Boat Encampment - eastern end of the 80 miles of Pass, the snow was deeper still,
increasing to the summit (6U25 feet above sea) to thirty feet under foot, with a slope at
Grand Cow of 78°. The party—master and men, had to cut their leather trousers into snow
shoes for the terrible climb—the writer with them.
M. McL. 30
danger, the party reached Jasper House on May 5th. Here he was detained
owing to the confinement of his wife, which had taken place in February,
the family having proceeded thither the previous October. On horses
being sent forward from Edmonton they continued their journey, and
reached that station on May 17th. From Edmonton, they embarked in the
spring brigade of boats to follow the Saskatchewan and the chain of waters
to Hudson Bay. They reached York Factory in July, having crossed the
continent in three months and twenty days. Mr. McLeod was in the
service of the Hudson's Bay Company when he died, in 1849, at the age of
sixty-one."
Though after 1826 he took no personal part in the service of the
company on the west side of the Mountains, he invested liberally, out
of his private means, to the extent of five hundred pounds, in the Puget
Sound Agricultural Association in 1835, and which enterprise was a
material factor in advancing not only the said company's interests, but
those of trade and settlement generally, throughout the region coming
within the scope of the indemnity in question.
That as to the special value of the services in question of said
McLeod and his local coadjutors aforesaid in pioneer development of
the natural and general economic resources of the whole Pacific Slope,
reference may be made to the highly laudatory record, strictly founded
on authenticated fact, of such standard historical works as Bancroft s
(H.H.) " British Columbia," and his work " The North-West Coast of
America," and also in Appleton's Cyclopaedia of American Biography,
verbo, " McLeod, John, Canadian Explorer and Trader."
It was for such, and such like service,  that as a quid pro quo,   the
indemnity in question was awarded; and to which the imperial pledge
of the Protocol of 1825-26, already alluded to, was given.     At  that
time, and up to it, the said McLeod alone was the duly delegated and
special representative of all   British interests involved in so far, as he
was,   on   the occasion,   part  and  parcel  a  constituent  unity  of the
Hudson's Bay Company; and in  the measure  of his  personal  and
private interests in such co-partnership, he, of all others, was best entitled
to compensatory consideration for such service. Having never forfeited
such consideration, it is inconceivable that he or his should, in this
regard, be ignored, or denied such right. The service was one of most
imminent personal^ peril, extreme difficulty, and great hardship, yet he
braved all, and did all, with marked and commendatory success,
These are not merely the words of his son, and constant companion in such service, and yet living witness of such facts, but of
historical and official record, foreign as^well as home.
His well earned right to a Chief Factorship was disregarded, but,
certainly, from no fault of his. As he ever lived«fo, he died; doing his
duty ; blameless, and ever perfectly. 31
CONTINUATION OF DEED POLL OF 1821.
From 1821 to 1834 no change was made in the relations of the
said parties to the said Indenture and Deed Poll, but in the latter year,
a reconstruction of the partnership was made owing to the fact, that
many, if not most of the trade partners from the North-West Company,
and some from the Hudson's Bay Company, had in course, and according to the provisions of the said Indenture and Deed Poll, ceased to
have any actual interest in the associate "concern." That reconstruction—using the term merely in the sense of a supplemental continuance of the original partnership of 1821—was made after due notice
to, and in consultation with the Chief Factors and Chief Traders (said
McLeod among them) then being, in accordance with article XXXVI,
already cited, of the Deed Poll.
The following was the resolution on which such continuance was
based and made :
Extract from  Minutes
I At a Court of Proprietors of Hudson Bay Stock, held at the
Hudson's Bay House on Friday, the 7th March, 1834."
I Whereas the (^-partnership created by the indenture of the 26th day
of March, 1821, was thereby agreed "to be continued for a term of 21 years,
to end with the returns of the outfit 1841, has been some years passed
dissolved (save and except so far as related to the 40 shares appointed by
a deed poll of the same date and hereinafter referred to), and the whole of
the partnership, effects and concern are and have for some time centered
wholly in the Governor and Company of Adventurers of England trading
into Hudson's Bay, and the trade and concern thereof has been and still
is carried on by them exclusively and for their own benefit, save and
except, and without prejudice to the rights and interests of the persons
entitled to the 40 shares under the said deed poll : and   whereas it is
DEEMED   EXPEDIENT   THAT THE  SAID TRADE   AND   CONCERN SHALL   BE  CONTINUED FOR AN UNLIMITED PERIOD." 32
CHIEF FACTORS  AND  CHIEF  TRADERS  PAID ON SUR-
M:-f;C RENDER  TO  CANADA.
That " unlimited period" was continued until interrupted by political exigencies incident to the surrender on 19th November, 1869, by
the Company to " Her Majesty, and for Her Majesty," "of all or any"
(sic in the deed) " of the lands, territories, rights, privileges, liberties,
" franchises, powers and authorities whatsoever, granted or purported to
" be granted by the said Letters Patent" (to wit: Charter of Charles II.)
" to the said Governor and Company, within Rupert's Land—provided
" that nothing in the said Act contained shall prevent the said Governor
" and Company from continuing to carry on in Ruperfs Land, or else-
" where, trade and commerce."
That surrender—it is to be remembered—was solely, substantially,
of the territorial rights or claims of the Company; for as to the " liberty " and " franchise'' of trade and commerce to the Company, it was
left unimpaired, to be used in common with the world; and the principle of monopoly was properly, legally, constitutionally, and in paramount
political behest, ignored and tacitly denied. According to constitutional
polity, it had become effete.
In 1871, under circumstances which need not here be stated, the
company paid in cash and at once £107,055 sterling—say $520,287—
to the Caief Factors and Chief Traders then being, and holding their
position, precisely and wholly, on the terms and conditions of the original Indenture and Deed Poll of partnership, of date 26th March, 1821
and continued by the deed, in the same sense, of 7th March, 1834,
aforesaid, for an "unlimited period."
That ,£107,055 covered one-third of the total amount, viz. : of the
£300,000 sterling received from Canada in full, and final payments of
the said surrender with its conditions; and the balance of the £107,-
055, viz. : £7,055 may be fairly presumed to have been for interest at
five per centum per annum, as per Deed Poll aforesaid, on that capital
of £100,000, from the fifteenth day of June, 1870, after the fourteen
days from date (1st June, i860,) for annual accounting thereof to said
partners, according to said Deed Poll. To make a full two-fifths
(40-iooth), one-fifteenth more (£20,000 stg.), would have been paid,
but not having been so, was, presumably, conventionally compensated
by the substitution of a fixed salary to these officers in lieu of the less 33
certain " profits " of their trade, as affected by the change in it under
the surrender.
In any case they—the Chief Factors and Chief Traders of 1871
received- -as a matter of right—their two-fifths, out of the " gains and
profits " of the " concern " of the year 1869 ; and that in these, of and
for that year—as could not otherwise be legally done—the said land
price, pro rata was included. The writer says " land price," for Canada bought and got only the land.
The application of this fact, in the present argument, will appear
further on.
The writer may here, for the nonce, state that on this subject of
settlement with the Chief Factors and Chief Traders of 1869-71, he
speaks not from direct personal knowledge—but from thoroughly credible sources, including the beneficiaries themselves, and from published
public statements on the other side. As understood by him, and as
stated to himself by at least one of these beneficiaries, the payment in
question had a very intimate connection with this very matter of Oregon
Indemnity.    How, and to what effect remains for other dealing. 34
STATUS
OF  CHIEF   FACTORS  AND
TRADERS    AS    OTHERWISE  ADMITTED   BY  THE
COMPANY.
On this head, in supplement to what has already been advanced on
it, the following evidence is presented :—
TESTIMONY
of Sir George Simpson, Governor, in America, of the Hudson's Bay
Company, as reported by the Commons Committee of 1857, as to their
territory and function.
Question 703.—(Chairman)—I believe you hold an important situation
in the administration of the Hudson's Bay Company ?
Ans.—I do.
Q. 704—What is it ?
Ans.—I have been Governor of their territories for many years.
Q. 705.—How long have you held that situation?
Ans.—Thirty-seven years I have been their pi incipal representative.
Q. 706.—(Edward Ellice).   As Governor the whole time ? *
Ans.—Yes ; I have held the situation of Hudson's Bay Company's
Governor the whole time.
Q. 707—(Chairman).    What is the nature of your authority in that
capacity ?
Ans.—The supervision of the Company's affairs; the presiding at
the Councils in the country ; and the principal director of the
whole interior management.
Q. 710—What is the nature of- the Council which you have mentioned ?
Ans —The principal officers of the Company, the Chief Factors, are
members of Council. If there is not a sufficient number of Chief
Factors the number is made up by the Chief Traders, who are the
second class of partners, and all matters connected with the trade
are discussed ana determined at this Council.
Q. 711.—What is the nature of the authority of the Council as distinguished from your own ; are they merely advisers ?
Ans.—They are advisers, and they give their opinions and vote upon any question that may be under discussion.
Q. 712.—Does the ultimate authority and decision reside in you solely,
or is it with you in conjunction with the Council ?
Ans.—With me in conjunction with the Council.
Q. 713.—Do you mean that they could outvote you and prevent your
doing anything which you thought proper ?
Ans.—They could outvote me, but it has never been sof ; in the
absence of the Council my authority is supreme f; in travelling
through the country, or giving any direction connected with the
management of the business, my authority must be acted on until
it be annulled or disallowed by the Council or the Company, t
* Sir Edward, the chief founder of the Colalition, knew that there was a sligbt
exaggeration in the statement, viz. : as to the time, which should have been 35 or 34 years
and also as to his being "principal representative."   He was merely a salaried officer at
£1,20j ppr annum.
t Scarcely true.   Know facts to the contrary.   M. McL. 35
Q. 1261. -What may be the Salary of the superior officers ?
Ans.—The factors and traders have an interest in the trade ; they
are partners.
evidence ad rem
of  The Right Houourable Sir Edward Ellice Baronet, M.P., P.C., a
member of the Committee, examined as a witness.
EXTRACT FROM REPORT.
To question 5784.—Latter part of his answer which is essentially historical and thoroughly true.
ANSWER.
" In this state of things," (after describing the prostrated condition of
all the rival fur companies in the field, each in insolvency or verging on it,
he proceeds to say : | I think about 1819 or 1820, Lord Bathurst, then
Secretary for the Colonies, sent for me to consult me whether it was
possible to do anything towards promoting a union between the companies.*
I undertook the matter, not only at his request, but from obvious considerations of interest, having become under considerable engagements for one
of the companies ; and after a very difficult negotiation, I succeeded in
uniting the interests of the various-parties, and inducing them to agree to
carry on the trade after that agreement under the Charter of the Hudson's
Bay Company.
At the same time I suggested to Lord Bathurst to propose a Bill to
Parliament which should enable the Crown to grant a license of exclusive
trade (saving the rights of the Hudson's Bay Company over their territory f)
"as well over the country to the east, as over that beyond the Rocky
Mountains and extending to the Pacific Ocean, so that any competition
which was likely to be injurious to the peace of the country should be
thereafter prevented.
From the said different arrangemenfosprung the present Hudson's Bay
Company, which is more in fact, a Canadian than an English Company in
its origin.
The Act thus passed, and under it the company have since carried on
the trade throughout the Indian Territories beyond their boundaries,
exclusively by virtue ot the license.
The license, granted in 1821—renewed with supplementary provisions in 1838, and continued to 1859, when it expired by efnujtion,
assumed British domain (dominium) from the Arctic shore to latitude
42   degrees  north,   embracing the whole   Columbia valley.      In 1825
* As he elsewhere explains in his testimony before the Committee, his father had
been one of the chief furnishers in goods and money, in Canada (Montreal) to the Fur
Company distinguished as the " X.Y, ' Company, with Sir Alexander McKenzie and
other Canadians at its head, subsequently incorporated with others in the same trade and
trade field as the North-West Company. That on the death of his father he (Sir Edward)
succeeded to, and took up that interest—a large one.
M. McL.
\ Limited according to their Charter,'to "All the lands and Territories upon the
" Countries, Coasts and confines of the Seas, Bays, Lakes, Rivers, Creeks and Sounds, in
'• whatsoever latitude they shall be, that ly (sic) within the entrance of the streights
co nmonly called Hvds n's Streights " — " and that the land be from thence reckoned and
reputed as one of our Plantational Colonies in America, called Rupert's Land." (Sic literally) in the Charter, Clause 9th.
M.McL. 36
under treaty with Russia, there was a modification as to the region since
known as Alaska, where the Company traded and had permanent trade
posts. Immediately after that treaty the company—under the new
arrangement/(iiawfi©4i4ittt>»*—carried on an " exclusive trade " with the
Indians even in Alaska, far north and west as Cross Sound, under lease
from the Russian Fur Company ; with whom their relations were—af er
the treaty—ever amicable. The local centre of all this Pacific Slope
and Pacific Coast and Ocean Trade, extending from Yukon and Sitka
in the North and North-West to San Diego in California, and, in the
same connection far Ocean-wards as the Sandwich Islands was, in
1822—24, at Fort George (formerly Astoria) at the mouth of the
Columbia ; and after that, Fore (and Port) Vancouver, about 90 miles
farther up, on the north side, within tide water. In view of this fact,
the cession, under the Treaty of 1846, quoad the trade and its, so called,
and emphatically admitted possessory rights, of the ass )ciated British
Trade Companies in question, was, practically, of the whole vast and
then exceedingly profitable trade—Inland, Coast, and Ocean,—of that
land and sea—the richest in the world, so far as the writer knows, and
whereof, having seen, he can attest to.
That fact is a material one in arriving at the proper estimate of the
Indemnity in question, and in determining to whom the same is due.
The Treaty practically destroyed the Trade ; or, at least, so curtailed it,
and so hampered its operations—rendering comparatively useless its
expensive ships and coast craft, including the first steamer vessel in the
Pacific—so as to allow little for profit in the concern, and actually, as
the annual accounts to the Chief Factors and Chief Traders in
question rendered showed, reducing " profits " to scarcely living wages—
in the case of Chief Traders, with their only " #;z<?-eighty-fifth," certainly
so. That what with increasing debits in the annual accounts rendered
them, principal and interest, for idle, rotting trade plant, ships, and
trade posts, &c. ; waste of goods, &c, thrown out of the trade by the
sudden contractions of its field of work; and worse still, by the extremely new penurious and even wrongful charges by the company, in
London, against their partners in America, of the very food—food of
the wild—necessary to the children of these same u Chief Officers,'' as,
at least, was the case, with the writer's father in latter years, the poor
Traders' balances grew gradually less, till many, who could, abruptly
left the service to try elsewhere, their fortune, or live elsewhere in some 37
comfort, while those who, from long habit in the country and trade, and
with large families could not do so, had to submit to the ever [grievous
burden of increasing cares and diminishing hopes of peace and comfort
in the evening of life.    Thus suddenly, into his grave, still in harness
after nearly forty years of   such   service, dropt   that  "Veteran Fur
Trader " as the historian Bancroft calls him, in his " British Columbia "—
" John McLeod " "H .B.C."    His balance as per such account, h%&$
without any extravagance on his part—for his habits were ever simple
and temperate—was a paltry one  thousand pounds or little more, with
little else between his widow and her little ones—girls mostly—to save
them from starvation ; and that in a world of strangers; for by the rules of
the company, no Factor nor Trader, or his family, could without special
permission, live on "their territory" on leaving the service. On this point—
one that applies more particularly to that class—f second class," as it
has been termed—of trade or " wintering " partners, much more might,
with propriety, and in common justice be said in the present argument-
Constituting, as a class, the operative founders and chief promoters of
the enterprise in question—one of national emprise in import—they, of
all others in it, are best entitled to, not only fair, but to even preferential
consideration.    As a class,  in  the times in- question, they were undoubtedly wzdkr-paid.     With the Chief  Factor, with his double share,.
it was  otherwise.    He had no more strain on   his   means;  no higher
life  to  maintain.    All—as Sir Edward Ellice in his evidence before
the  committee  of   1857,   most  thruthfully  said—were    "gentlemen,"
selected as such, for the service—one essentially  militant  and  gubernatorial—kings among savages—generals and governors among white
men in arms and struggle a outrance—so, in those early  times, in battle
ever was it, in the^far wild lands.
Evidence—Continued—of Sir Edward Ellice, ad rem, before Commons Committee of 1857.
s^
Question 5791.—Will you have the goodness to state to the Committee
what was the constitution of the Company after the union ?
Ans.—The agreement for the participation of the new Company
was, that the Canadian Companies whose interests had been before
unj^ed, and the stockholders of the Hudson's Bay Company should
"nave, as nearly as possible, equal shares. It was then necessary to
consider the interests of the gentlemen in the interior who conducted
the trade on both sides ; and it was decided that whatever profits
should arise from the trade carried on by the Hudson's Bay Com-
pany, for the joint interest of the parties, should be divided into
100 shares, and that 40 of these shares should be allotted to the gen-
m 38
tlemen in the interior who commanded the Posts, and superintended ^he general interests of the Company, but who supplied no
capital. It was provided that a certain number of these shares
( should be given as whole shares to the higher rank of servants, if
^Kji-A^y-^ -^cAAXiXj^f^^Qj may be so called, Chief Factors, and that half a share should
*v--t^e?*^c*vt^J3^^uj--be given to a certain number of gentlemen in the immediate rank
%^ujr\^. ^^t^rt±£t^*l below them called Chief Traders.
'X£%exjA&-T> T^^^^^Qiiestion 5792.—Is that the system upon which the trade of the terri-
'i^^lA^j^^^'fr^       tory has been conducted up to this time ?
j^^v' Ans.—That is the system under which tlie trade has been conducted
Wc»L\ (^"^^ytT^C^*^ from THAT time TO (THIS."
?^*H» J Y?%JLspfr£TOCK.  OF  THE  CAMPANY.
Af^>^^(^^fl**^?r^n tnis subject, in answer to question 5802, this most authorative
'y&^fy^^.tp  witness (Sir Fdward Ellice), says : " The stock of the Company, at the
union, was ^400,000—since increased by money and profits carried to
stock, to half a million, at which it then stood."
STATEMENT BY  THE WRITER
as to this matter of " Stock." In the case of the Canadian Companies
it was entirely made and based on the profits of the trade. Their principle of partnership was service, on capital, principal and interest, charged
to the partnership in the trade ; which partnership was on the principle
(French Canadian), of | Commandite" in which the total liability to
creditors is, jointly and severally, in persons named and published to
that effect. These, in the present case, would correspond with the
" Stock " proprietary of the Hudson's Bay Company.
This Stock proprietary, Canadian and British, is,per se distinct from
the 100 shares aforesaid, which represent the whole "Concern," and all
its property, real and personal, and franchise, in, and for the trade in
question ; and for which alone, in its terms, the Charter of Charles II.
was granted to " The Adventurers of England trading into Hudson's
Bay." The Canadian Company or Companies—self-constituted under
the common law of their country (Lower Canada)—were in the same
and a wider field in the same or like objective interest. As to the
question of strict legality of such a combination, on grounds of public
policy, that is not in the present case. As to all the parties in the
" arrangement " (as Sir Edward very correctly technically calls it), "legal
or not," quoad themselves, all and each in it are bound by their own
mutual bond.
As to the particular question of Oregon Indemnity, the Imperial
Act of Parliament allowing the license^ aforesaid and the Trpntv ir<u»lf
* Not true. The N. W. C.—composing three-fifths of the Chief Factors and Chief Traders named in, and parties to, the original deed-poll of i8ai—put in, at the same time, all their property in the trade, including about or
over 100 trade posts, stock, and plant, worth, then, over £500,000 stg. Ellice and the two McGillivrays (Simon
and William) and their respective partners were merely suppliers of goods to, and agents of the N. W. C, creditors,
as such, of that Co., taking payment by the arrangement, in stock of the H. B. C, increased for the purpose. >
The other Chief Factors and Chief Traders, in said deed-poll, were of the Hudson's Bay Company—creditors,
largely, for arrears of salary, and who had, in the troubles- as, at least, had said McLeod—fully earned such partnership. M- McL- 39
1 1
cover the question of public policy, and, incidentally, they cover all personal right in that relation.
Coming back to the matter of Stock. It is to be observed, i. That
it is proper, nominally, solely to the 6o shares aforesaid. 2. That as to
the Canadian share (by far the larger) in it, it is solely, the result " gain
and profit" of the trade in question. 3. That as to the Hudson's Bay
Stock, proper, it, also, is entirely of the " profit" of trade in question,
with the exception of two small sums, one of ^10,500 paid in some
time before or about 1 fX&> not for the trade, Dut^fo nominally increase,
to a treble amount, their market stock of the day; and also another
amount of only £3,100, (three thousand one hundred pounds sterling)
for like purpose, and which, possibly, is the " money " so imputed, referred to by Sir Edward in his answer just cited. The Trade did not
benefit from such outlay; and makes no claim to it—though, in fact,
the Trade made the stock and its " rise |—the whole of it.
These statements are made as to the Stock and Trade Shares in
question as they stood at the time of sale and transfer, viz.: on or
about 1st July, 1863, by the "Old Hudson's Bay Company" to the
" New " and present Hudson's Bay Company—so called.
In the present case there is no claim to such stock or any part of
it, nor to an iota of what the " New " Hudson's Bay Company of July,
1863, aforesaid—the present one—acquired by its purchase and payment, in cash, to the so called " old " Hudson's Bay Company. The
subject of the present claim (Oregan Indemnity) was not in the Bill (of
sale) as made and agreed on between the said parties, viz.: the Hudson's
Bay Company, as amalgamated on 26th March, 1821, and the " International Financial Society who bought them out. The facts on this
point are clear, and well known to the present Company and incontestable.    Let us glance at them briefly. 40
BASIS AND SUBJECT OF PURCHASE, BY THE NEW
COMPANY.
According to the Prospectus issued to the public by the New Company at the time of their purchase (July, 1863), and stated on 2nd July,
1863, by *he la*e Duke of Newcastle, as Colonial Secretary, in the
House of Lords as reported in the London Times of 3rd July, 1863,
the total purchase money was one million five hundred thousand pounds
sterling (£1,500,000 sterling.)
That, according to the official letter of the delegates (Sir George
Cartier, and Hon. W. McDougall, C. B.) of the Canadian Government,
to the Colonial Office, in February, 1869, in concluding the negotiations
for the surrender aforesaid, * the Bill of Sale as made up by the " Old "
Company and accepted by the New was as follows :
" 1. The Assets (exclusive of Nos. 2 and 3) of the Hudson's Bay
Company, recently and specially valued by competent valuers
at £1,023,569
2. The landed territory (not valued)	
3. A cash balance of        370,000
^I?393>569 "
The deficit, and blank for " landed territory" was therefore
£106,431. That small sum could not, reasonably, be assumed to cover,
or apply in any measure to the " Hudson's Bay Territories " proper,
" Rupert's Land," the company's claim as to which, in absolute freehold, was emphatically denied by the Canadian Government, and not
then, (2nd July, 1863) admitted or sustained by the Imperial
Government, but left in abeyance. There were, then, lands of great
value, on the west side of the Rocky Mountains, which, some years
before, had been bought by the Hudson's Bay Company from the Crown,
amongst^,080 (three thousand and eighty) acres since forming, or included in the site of the City of Victoria and Harbour of Esquimault,
B.C., and ever entered and accounted for in the general fur trade
accounts of the Company. Such asset might well amount to the
£106,431.
As to what was included in the first item (£1,023,569) of the
above " Bill of Sale,'' we have an authoritative statement in the official
report ad hoc to the Government of Canada ad hoc in London, England,
viz. : the Hon. George Brown, a member of that Government in 1865.!
* Sessional Papers, Canada, 1869, No. 25.
t Journals, Legislative Assembly, Canada, i860, Vol. 25, p. 48. 41
EXTACT FROM SAID REPORT.
" I drew Mr. Cardwell's attention to the fact, that the prospectus declared that the assets of the New Hudson's Bay Company, exclusive of
landed territory, had been recently valued by competent valuers at
£1,0^3,569 sterling, and that these assets were further explained to consist
of ' goods in the interior, on shipboard, and other stock in trade, including
' shipping, business premises, and. other buildings, necessary, for carrying
' on the fur trade.' I pointed out that in addition to this large amount of
convertible property, ' a cash balance,' derived from the old Hudson's Bay
Company was spoken of in the prospectus ; and that other large landed.
possessions, besides those in the East of the Rocky Mountains and North of
the American line, were thus set forth in the prospectus as being part of
the property purchased by the new company. In addition to its chartered
territory, the Company possess the following valuable landed property ;
several plots of land in British Columbia, occupying most favorable sites at
the mouths of rivers, the titles to which have been confirmed by Her
Majesey's Government; farms, building sites in Vancouver's Island ; and
in Canada, ten square miles at La Cloche, on Lake Huron, and tracts of
land at fourteen other places.
In addition to all this, I directed Mr. Caldwell's attention to the fact that
the Hudson's Bay Company held a claim against the American Government,
and which was at that moment under consideration by arbitrators, for the
surrender of their rights on the Pacific, south of the boundary line established under the Oregon Treaty. I stated, on information that had reached
me, but without personal knowledge of its correctness, that the American
Government had expressed its willingness to pay one million dollars for the
extinction of that claim, but that the company rejected it, and were in
expectation of receiving a much larger amount."
It may be here stated that in or about August 1867—or about
then, four years after the purchase—the final award, under the Treaty,
was " Four million dollars to the Hudson's. Bay Company? eo nomine,
and besides that, one million onefmousanadollars to the Puget Sound
Agricultural Association ; which latter claims had—previously—between
July, 1863, and the date of the award—been speculatively bought up
by certain parties at one-tenth their face value, in principal, and transferred—on what terms is not known beyond the inner circle of the
transaction—to the New Hudson's Bay, who, as admitted by their own
official response (by their Secretary) of date 16th November, i86^'Q/to
the enquiry on the subject of Messrs. Robert S. Miles, William Sinclair,
George Barnston and John Swanston (all retired Chief Factors of the
Hudson's Bay Company, personally and privately, like the aforesaid
John McLeod,- holders of stock in that Association), and which stock,
since 1837, had ceased to yield any dividend whatsoever. Deceived, like
these gentlemen, in the matter, and hopeless of realizing thereon, otherwise, the writer as administrator of his father's estate, sold out his five
shares (£500) for one-tenth, viz. : $250, That was in August 1863.
But that apart. 42
The present claim is only on the award to the Hudson's Bay Company—id est—Company as it was at the date of the Treaty • according
to the text of that document as being and having been " already in the
" occupation of land or other property lawfully acquired within the
Territory " (in question), " south of the 49th parallel of latitude."
THE NEW HUDSON'S  BAY  COMPANR (of 1863) NEVER
BOUGHT  OREGONlvVjfeZAwvAiafel  t
INDEMNITY  TO  THE   " OLD "   HUDSON'S   BAY  COMPANY  (OF   1846).
This appears in every aspect of the case, and especially from the
following standpoints:
1. The treaty determined the facts and relative rights and positions
of the parties and all persons incidentally therein concerned, as they
then were, and had been up to the date of the treaty. Its terms and tenor
specifically state so.
2. That as to indemnity it was not, in any degree or sense prospective, but retrospective, as to its subject and purviews.
3. That the matter of amount of indemnity—as before said—was
necessarily one of enquiry with unavoidable delay; but that it was a
mere assessment, enuring to the parties to whom, at the date of the
treaty, the right of indemnity accrued, fully and finally.
4. That the subject of it being, by it, taken, entirely, absolutely,
and at once, out of the " possession " and jurisdiction of the Hudson's
Bay Company, and of Great Britain itself, and appropriated wholly, and
solely, to the United States of North America—a foreign nationality—
it could not, after the treaty, in the nature of things—ratione rei, et
juris—belong to, or be under the control, in any sense or way, of that
company or of any subjects of Great Britain. That the company being
itself but the creature of an English Royal Charter, could claim no more
as to such matter than any British subject or the British Government
itself.
5. That by and in virtue of the treaty and in accordance with the
special terms and organic conditions of the Indenture and Deed Poll of
1821 aforesaid, as continued by Deed Poll of 1834 aforesaid, the indemnity in question, in its integrity, accrued to the said company as then 43
being, in its several distinct parts; in its several personalities ; in its several
constitutent entities—by devolution of estate, on death, as it were; for,
from the moment of Treaty, the matter of it, viz : the " possessory
rights " in question, became nil to the company as a company. As a
corollary, they, as a company, could claim nothing in a proprietary or
beneficiary sense, from iw Necessarily—for proper collation and payment to the several partitioners in such estate—the national award had
to be paid over to the company—not for ^^appropriation—but simply
in trust, for distribution according to their respective rights of these
several beneficiaries.
6. That this, or the like, seems to have been the view of the matter
by the " old " Hudson's Bay Company, as appears by their answer some
three months before their sale to the " New " (the present) Hudson's
Bay Comdany, to the letter, in enquiry as to the proposed sale, in relation to the rights of Chief Factors and Chief Traders in the company.
The subject of enquiry then was not, specially, that of indemnity—Oregon Indemnity, alone—but included the larger one of all rights, territorial as well as trade, on the surrender in question. The correspondence on this subject was included, with other papers, in a memorial
(without date, but evidently 1^f&£he sale in July, 1863, in question) by
certain retired Chief Factors, viz : Robert S. Miles, William Sinclair,
James Anderson, George Barnston and John Swanston, to the Right
Honourable Mr. Cardwell, Secretary of State for the Colonies, in advocacy and defence of their interests. The memorial is too long for present citation, and it may suffice for the present point, and in explanation
of the immediate ground for the memorial as applicable to the present
argument to give the following extract from it :
EXTRACT,*
Clause 5. In the present state of selling and exchange of the Hudson's
Bay Company's affairs, we consider it required by justice, likely to prevent
evil, and tending towards a wiser course to place our interests under the
immedi.te protection of Her Majesty's Government. We feel assured that
better consideration will be had from it than from any Board in Fenchurch
Street.
The old company sold their " perpetual succession," and us along with
it suddenly, and without previous notice to the Governor or to the Trade,
and by that act introduced a most disturbed state of feeling and business."
" 6. We would have apprized the late Duke of Newcastle of this danger,
but a lett r of assurance from the old Board, of which copy is herewith enclosed, lulled us into security, and enabled that concern to compass its purpose without representation on our part,"
• Return, printed on address of House of Commons, Canada, 18th November, 1867
Sessional Papers, Canada, 1st Sess., 1st Pari., 1867.
4 44
copy of said letter.
" Hudson's Bay House,
London, 27th February, 1863.
Gentlemen—I am directed by the Governor and Committee to. acknowledge the receipt of a memorial (forwarded through Mr. Chief Factor Barn-
ston), dated Montreal, 28th January, 1863, under date 7th February.
In reply, I have to state that communications have passed between the
company, on the subject of the surrender of the whole, or a part of the
lands held under the charter ; but that it is utterly at variance with the
facts of the case, that 1 the only question remaining unsettled is the amount
of indemnity to be paid for the surrender." On the contrary, the Governor and committee have reason to believe that Her Majesty's Government
have no intention of prefenng any vote in Parliament for such a purpose.
The Governor and committee are at a loss to conceive how the interests
of the commissioned officers of the company can be considered as unrepresented, and I am directed to express their surprise that such a statement
should have emanated from gentlemen who have been so long connected
with the service and who ought to be satisfied ; that now, as ever, the Governor and committee consider themselves equally bound to protect the interests of the Fur Trade as those of the proprietors.
The Chief Factors and Traders, whether on the active or retired list,
may rest assured that should any surrender of the charter be made, of
which, at present there is not the least probability, their interests will be at
least as carefully protected by the Governor and committee as they could
be by any arrangements such as are shadowed forth in the memorial.
In all the communications with the Colonial Office, in the evidence
before the Committee of the House of Commons, and in any declaration
made in the two Houses of Parliament by any friends of the company, it
has been invariably stated that should the company surrender their chartered rights they would expect compensation for the officers and servants
as well as to the proprietors.
Under these circumstances the Governor and committee, while admitting the rights of the memorialists to make enquiries as to regulations supposed to affect their pecuniary interests, cannot refrain from expressing
their regret, that in the present instance they should have affixed their
name to this document upon anything so unreliable as mere newspaper
reports.
I am, &c.,
Thomas Fraser,
Secretary.
George Barnston, Esq.
Wm. Sinclair, Esq.
John Swanston, Esq.
James Harorave, Esq,
Robert Miles, Esq.
James Anderson, Esq.
In another letter, published with the same Parliamentary Return,
on the same subject, we have, from the same quarter, viz. : the Chief
Factors on the retired list aforesaid, the following explicit statement, not
only as to their claim on the surrender in question, or contemplation at
the date of the letter, but on the Oregan Indemnity also.
BE 45
letter of chief factor,
ROBERT S. MILES, TO
GOVERNOR, H.B.C.
A.    G.    DALLAS,   ESQUIRE,
" Brockville, 14th August, 1867.
Sir,—I am in receipt of my account current from the Hudson's Bay
House, of date 1st June last, and am somewhat surprised at not receiving
therewith any communication respecting the proposition made by you
when in Brockville two years ago, in your capacity of Governor in Chief
of the territories and settlements of the Hudson's Bay Company, for the
final settlement by them with the retired officers of the company, which
by you, was thought desirable at that time from the various changes that
would and must occur under the new arrangements of the concern. The
proposition agreed upon and accepted by us, to be made was on a last ten
years average of the one eighty-fifth dividends of the concern, which,
commencing with the outfit, 1853, and ending with the outfit, 1862, give
£4$6.5s. 6^(1. The transfer of the company took place in 1863, and
whether you wait for the completion of that outfit to commence with outfit 1854, and end with the outfit 1863, by the tenor of the first dividend of
1863, and taking into consideration the returns which must have remained
in the* South from the loss of the ships, the result cannot vary much from
this statement, viz. ;
£. S. D.
        335.12.3
     690.18.2
1855     872.10.1
Outfit 1853
do    1854.
do
do
do
do
do
do
do
do
1856      339. 9,5^
1857     479. 3.9
1858     475.15,0*
1859
1860.
1861.
1862.
259.11.31
248. 1.8
207. 8.6
5.1
353
Ten vears £4,662.15.3*
Average £4(^6. 5.6£
I therefore, as also do those of the undersigned officers, who have requested me to write to you thereon, wish to know, without reserve, if the
company close with us on their terms.
When the country On the West side of the Mountains was claimed
under Treaty by the American Government, the Northern and Southern
Councils were advertised by our depar:ed late friend, Governor Sir George
Simpson, that a claim of one million pounds sterling would be m-de on
that Government for the possessory rights acknowledged by the Treaty,
and that the proportion thereof would accrue to the commissioned officers
conformable to their interests. We now see that the claims of British
Companies on the American Government have been awarded as follows :—
To the Bay Company $4,000,000, and the Puget Sound Agricultural
Company $1,100,000.* We therefore beg to submit that our claim on the
former is not cancelled by the transfer of the old company to its present
possessore.
In reference to the affairs of the Puget Sound Agricultural Company,
those of us who held stock in that concern, and from its commencement
only received two small dividends, rested satisfied that the agents there
appointed by us, or their successors, would see us righted under whatever
settlement the United   States   Government   would   make.    When the 46
Secretary of the Company * asked us to dispose of our shares at par
without interest, f we think he should at the same time not have kept tis
in ignorance of the claims that would be submitted to the American
Government therefor ; and we are surprised we should have been treated
in this ambiguous manner, after the solicitude held out by the company at
the period of its formation, of which I have copies in my possession. The
Secretary of the company, however, has now, our stamped receipts which
at the same time, we look upon as a most illiberal transaction by the individuals that took this ingenerous advantage of our position.
The late Directors were very indignant (vide their letter of the 27th
February, 1863) that the retired officers should have ever considered them
unmindful of their interests, and even went so far as to tell us that there
was no idea of a transfer of the concern being made ; how these assertions
have been verified the present company can tell.
You are still, Sir, connected with the company, and I await an early
reply.
I remain, &c,
A. G. Dallas, Esq. Robert S. Miles.
We the undersigned subscribe and concur with the expression of the
sentiments hereinbefore set forth in our behalf and at our request.
William Sinclair,
George Barnston,
John Swanston.
-   Other Letter in Said Return.
" Hudson's Bay House,
London, 16th November, 1865. i
Gentlemen—I am directed by the Governor and committee to acknowledge receipt of your letter of the 26th October, transmitting copy of a letter
addressed to Mr. A. G. Dallas, on the 14th August last by retired Chief
Factor Miles, to which, you say you have received no answer, and which
you now submit to the Board, and request a distinct and early reply.
*■ Meaning Secretary of the Hudson's Bay Company, for the enterprise was—as Sir
George'Simpson testified! hefore the Commons Committee of 1857—an " off-shoot " of that
company, and was inlcuded in its annual accounts with its partners.
M. McL.
t This Puget Sound Agricultural Association—such was its name---was got up for
general supplies of food-—cereal and animal, grain, beef, tallow, pork, &o$<>v\Russian and
American Coast Trade as well as for the Fur Trade of the H B.C. It was got up at the
instance of the Hudson's Bay company, hut was an enterprise apart from that company.
It was started at a capital of £200,000 sterling, in shares of £100. Ten per cent, paid on j
subscription. The principal subscribers and promoters were Chief Factors and Chief
Traders, who had had some experience in the Pacific Slope, amongst them the writer's
father. As appears by examination of his back annual accounts current from the Hudson
Bay Company, in which this item was included, the only dividends ever paid them---the
stock holders was---as Mr. Miles says, "two small ones,"viz.: at its commencement.1-
These were only 5 per cent, per annum on the one-tenth paid up. and which Mr. Miles refers
to as "par "-—meaning par on amount paid. There were no other calls. The enterprise
must, presumably, have paid well in some quarter, for now, in 1867, the few Hudson's Bay
Company thereon---as reported by Mr. Miles—drew $1,100,000 (one million one hundred
thousand dollars) under the Oregan Treaty on thit head alone. How the Hudson's Bay Company, the trusted agent of those original promoters, could thus, by a swpnresHio veri and
ambiguity " of misrepresentation to their principals, do such a thing may well surprise
Mr. Miles and the other Chief Factors signing his protest. The writer—as elsewhere
stited-- was similarly "surprised. " That was just after the sale of July 1863, when
the negotiations were in camera in the matter, with no means nor power to the principals
concerned to investigate, as per regulation of the company (H.B.C.) already cited, precluding such enquiry.
M.McL.
+ So in printed return, hut, evidently, should be 1867.; 47
Your letter having been taken into consideration at the meeting of the
Board, held on Tuesday, the 14th instant, the following resolution was
unanimously agreed to:—
" Resolved, That the Governor and committee decline to entertain the
request of the gentlemen who sign this letter—no authority was given to
make any offer or proposal, such as is recited by them—that at the time
when the Governor and committee offered to purchase the PugeVs Sound
shares referred to in their letter, no fresh action whatever had been taken
by them with reference to the claim of the United States Government.
The offer was made in perfect fairness and
voluntarily by the parties concerned.
good
faith, and was accepted
I am, &c.,
Thomas Fraser,
To Messrs. Secretary.
R. S. Miles,
Wm. Sinclair.
George Barnston,
John Swanston,
Retired Chief Factors, HB Company."
Other Letter from the New Hudson's Bay Company, to said
George Barnston, on same subject as published in pamphlet, page 6, of
said Barnston, under head :
I The  Oregon  Treaty
and the
Hudson's Bay Company."
In 1868.
Date  omitted.    Probably after  4th   March, 1868, or about then.
COPY.
" Sir,—I am desired by the Governor and committee to acknowledge
your letter of 21st ult., claiming your share of the compensation awarded
by the American Government to the company for their possessory rights
in Oregon, and in reply I am to inform you that the whole case was submitted to eminent Counsel, who advised the Board that the officers had no
claim on the company.
I am, Sir, &c.
&c, &c,
W. Armit,
Secretary.''
Answer, from the same New Company, to undersigned McLeod,
in same matter.
Letter of McLeod.
" Buckingham,
Countv of Ottawa,
To the Governor, Feb. 8, '68.
Deputy-Governor
and Committee of the Honourable
Hudson's Bay Company.
Gentlemen—As representative, under Letters of Administration obtained in England, of the estate of my father, the late John McLeod, senior, 48
who died in your honourable company's service in July, 1849, one of the
Chief Traders named in the Deed Poll of 1821, and who continued so to the
day of his death, I beg respectfully to enquire whether his estate will be
credited with his share (an " ^ " as per Deed Poll) on the amount awarded,
or about to be awarded by the American Government to the Hudson's Bay
Company for their " possessory rights" in Oregon?
If so, I would humbly ask that the " account current " be, as formerly,
sent to me, either directly, or through your company's agency in Montreal.
The share, as I view the case, accrued at the date of the Treaty. I was
not aware of the position of the claim until the production, during the present Session, of certain papers on the subject before the House of Commons
here. From them, it would appear that there is some difference of opinion
as to the relative rights of the parties interested. For my own part though,
as a barrister, holding a very strong opinion in the case, were the claims I
represent my own personally, I would, under the circumstances of the case,
feel inclined to forego much, in the way of compromise, to avoid the cost
and inconvenience of a judicial test, but my position being mainly, if not
wholly, merely fiduciary (I, with other children then of age, having in 1849
or 1850, renounced in favour of the widow and minors, of whom, only two
daughters, still unmarried, are the survivors), I feel that a very limited
discretionary power, in that way, is left to me.
The position I feel it my duty to take is, that the indemnity in question
falls, properly, under the head of " clear gains and profits of the concern ;"
that it accrued at the date of the treaty ; and that the totality of the
" 40-100ths" of it belonged to1 the Chief Factors and Chief Traders of that
body then being, and to the '' retiring interests " of such partners, according to the terms and provisions of the Deed Poll of 1821, in force (by continuance) at the time, viz : in the proportion of 72ff for each Chief Factor
and ^V for each Chief Trader.
I have the honor to be,
Gentlemen,
Your very humble servant,
Malcolm McLeod,
Admr. estate late John McLeod (senior),
Chief Trader Hon. H B. C?;'
Answer.
'' Hudson's Bay House,
London, March 4th 1868.
Sir,—I am directed by the Board to acknowledge the receipt of your
letter of the 8th ultimo, and to inform you in reply that the subject will
receive due consideration when the company's claims on the American
Goveanment, under the Oregon Treaty, are settled.
I am, Sir,
Your obedient servant,
Malcolm McLeod, Esq.,
Buckingham, County of Ottawa."
Jno. G. Smith,
Secretary.
The italicization of "due consideration" is, by the present writer.
Evidently, at the time there was no intent of repudiation. It would be
hard to suspect for a moment, that a body of gentlemen—successors of 49
Prince Rupert and his noble co-corporators of the Royal Charter which
gave them name, and corporate existence, deliberately intended thus
" to make promise to the ear, and break it to the hope." Not thus was
it with the old Hudson's Bay Company—than whom—Canadian and
English—no more honorable a body of men ever walked this earth \
and to whose character in this regard \ with all men. civilized, and
savages, is due, most largely, their conquest of Northern North
America from Ocean to Ocean, from Mexico to the North Pole. But
to proceed with the argument.
In these somewhat extended extracts—but unavoidably so—from
the correspondence and record of negotiations in this matter, the writer,
would for the present, point to these two incontrovertible deductions,
and facts^ift-footy viz. : (a) That the " old ' Company in entirely excluding, in their Bill of Sale to the new, the item and matter of Oregon
Indemnity, considered that it had ceased to be, or that it had never
been, an asset of the Company, per se, after the Treaty; but from the
date of the Treaty, and as «the immediate effect of it, in, at once destroying the trade, throughout the region in question, and thereby, to that
Trade—and nothing else—causing immediate real loss—accrued, at
once, to the several parties, in their individualities concerned in it.
The Treaty is, specifically in that sense, and although the name " Hudson
Bay Company " is used in it, it is so—sub modo—in the sense of a trust
or agency, merely.
(b.) That what was due to, and really belonged, in determined
right, to the partners—trade and " propriety"—of the company in
1846 could not, in common sense, not to say reason, law or equity,
belong to trade—totally different—of 1868. Such a violation of obvious
right cannot be covered, legally, or in common ethics by any " Counsel "
however " eminent." It was not—is not—a question of law, but simply
of meum and tuum absolute, and not of debt as between debtor and
creditor. To proceed to another point under this general head of non-
purchase, by the New Company, of this Oregon Indemnityr seventhly :
Rebates, &c.
^'TWrThe New Company bought, as aforesaid, by a cash payment of one
million and a half pounds sterling. They forthwith put the whole on
the London Stock market at two millions of pounds sterling in 100,000
sharss of ^20 each.    On these up to 1886, an aggregate rebate of £7 50
per share was paid : making a reimbursement of ^700,000 out of the
;£i,500,000 of original purchase money. Add to that (if not included
in the ^700,000) the ^300,000 sterling received on the surrender of
1869, and we have a balance on that of ^500,000. But in this, as per
bill of sale aforesaid, there was a "cash," " in hand," item of "^370,000."
That left an actual cash outlay of only ^130,000. Covering this we
have—as admitted by themselves—the one million sterling—or, as
stated in American currency, four millions of dol&rs to the Hudson's
Bay Company, and one million one hundred thousand dollars to the
Puget Sound Agricultural Association bought up, " in a way," as already
stated, for one-tenth—a clear gain of one million dollars on this last
item alone.
Add to that the valuable city building sites, and other most
valuable selected lands in British Columbia, worth, probably, at least,
another million pounds for ihe localities where held, viz., city of
Victoria, Port of Esquimauit, Port Simpson, Kamloops, and other
interior fast rising city and town sites, are, estimatively, the most
valuable in the Dominion of Canada.
Finally add to that the enormous grant of land on the " surrender,"
viz., " 45,160 acres " of trade-post sites, including " 500 acres " of the
most valuable part of the "city of Winnipeg," worth at least, twenty
five millions of dollars, " 500 acres " at and about " Lower Fort Garry,"
worth, at least, two millions of dollars, and " 500 acres," at " White
Horse Plain," close by Winnipeg, worth, at least, another two millions
of dollars; and last, and certainly not least, the " one-twentieth " of all
that peerless wheat field of the world, from Red River, Lake Winnipeg,
to the summit of the Rocky Mountains (700 miles) with an average
breadth of say 400 miles—an aera of 280,000 square miles, say 180,-
000,000 acres ; one-twentieth of which is nine millions of acres, worth,
at present local values, at least twenty millions of dollars. Besides that
they have the whole " trade plant," including ships steam and sailing,
valued, mutually, by the respective valuators of the two companies
(old and new) at ;£i,023,569 sterling. That stock—practically rebated
in full, and far beyond—stands to day, in London's Money Market, at
a premium probably unequalled in the courts of Mammon, past or
present.
This statement, astounding as it may seem, is strictly within public
record.    As to the internal matters bearing on this point of rebate, I
+ ^c^U^^J?\t>^o0o,1*<>c? ^
T"
I
\*&A 51
would refer, as to incontestible authority, to the admirable, and most
thoroughly correct work of Sir Edward W. Watkins, Baronet, under the
caption, " Canada and the States," published in 1887. The subject of
rebate is given by him in page 128. The whole work, especially his
chapters under the heads, " Negotiations for Hudson's Bay Property,"
and 1 Re-organization of Hudson's Bay Company," is, from his own
particular standpoint in the matter, essentially authoritative on the subject,, for his was a leading part throughout the whole negotiations, and
he gives the facts with a candour and liberality which commends itself
to general regard. According to his statements, and there is no reason
to doubt them, he was the first to organize the Syndicate of American
and English capitalists to solve the problem arising from the refusal of
the British Government to adopt the earnest advice of its Secretary for
the Colonies (the Duke of Newcastle), supported by the elder Baring
(Lord Wolverton), to expropriate, out of the national purse, the territories in question, to national behest. The task was an extremely difficult one; and unfortunately for the poor worthy traders in question
they had no special advocate to see to their particular interests in the
controversy. They, in the way indicated by the memorial to the Right
Honourable Mr. Cardwell, as Secretary of the Colonies, already alluded
to, made an effort in that direction, but, seemingly, with no effect. In
like interest, in advance, the writer, personally, on 5th June, 1862, addressed himself to His Grace the Duke of Newcastle, with better effect
for it was at once acceptively responded to, as may appear from his
speech in the House of Lords (4th July, '62), as reported in Hansard
Vol. 167, pp. 1409-11, and which really started the movement in question. The writer holds His Grace's personal acknowledgment of the
service, and his immediate action thereon was his response to the appeal.
Having thus gone over the whole ground of the matter, the question suggests itself: How did this " New Company "—so called—acquire the treaty rights in question, of the Hudson's Bay Company as
then being ? According to their own title, indenture and accompanying
schedule of assets, the subject was very properly, not included. The
omission was not a mistake, accidental or otherwise. All the res gestae
of the transaction precluded that idea ; the price given emphatically
ignored it; it was not in their bond at all; was not an accidental accretion, for it was something finally determined as a right seventeen years
before their purchase; a right, a thing—-not then in the power of the 52
company, as a company, to sell. From the organic agreement of that
company, it had bocome singula singulis, the particular, private, personal property of the constituent members of the company as then, at
the date of treaty, being. The old company, jointly and severally, took
that stand in the matter, throughout. In doing so, the old stockholders
knew they were acting in the spirit as well as the letter of their bond
with the trade partners, in whom—as they ever gratefully, practically
admitted—they lived, and moved, and had their being as a Fur Trading
Company of Northern America. Some of these old stockholders may
be in the new company, but it yet remains to be learned whether they
repudiate their traditions in this regard. They certainly cannot well be
suspected of suggesting any doubt on the subject, and sheltering themselves under the cover of an ex parte, " legal opinion " of their own
" eminent counsel."
LAW OF  THE  CASE.
As before observed—the present is not—or, at least, should not
be—a case for the courts of law, or even of reference to " eminent
counsel," for the facts and the words of the bonds, as clearly expressive
of the consensus ad rem of the parties in the case, speak for themselves.
In such case, the formulated agreement of parties, while within the
bounds of public polity—as in the present instance—makes and deter-
mimes relative law and right in the matter quoad the parties. In this
sense, under the Original Indenture, and Deed Poll of partnership of
1821 as continued in 1834, to an "unlimited period," the award,
became—I repeat—the actual and personal property of each partner
(trade or | proprietory " so-called) in the measure of his " share," from
the moment of the passing of the Treaty, and in case of his death before
payment thereof, devolved to his succession. That—as the writer
contends, and as the venerable and intelligent Chief Factors above
named have so unanswerably urged—is the indisputable law and right
of the case. It was competent, of course, for those gentlemen, to go
into the courts about it. That they forbore from doing so, is no
derogation to their right. Pending assessment : lulled by old and
recurrent assurances, they waited, till, in course, they died, leaving—
some of them in scant poverty—widows and orphans to gather thereof,
as best they might. To these—in their poverty—the courts of England,
in such a matter, against such a power as the Hunson's Bay Company
of to-day, with its grasp of millions untold, are inaccessible. The
challenge is a mockery. 53
CASE IN POINT.
In the whole record of judicial procedure—so far as the writer
knows ; and his readings professionally, French as well as English, in
that line for over half a century, have been almost exceptionally large—
there is not a single case—he ventures to say—exactly in its details in
point. But there is one case in which on the same original indenture
and Deed Poll, and between the same or like parties, an issue of relative
rights in question has been finally decided. The report of the judgment appeared in the London Times of 27th February, 1868.
REPORT (London Times, 27th February, 1868).
(Before Vice-Chancellor Sir W. P. Wood.)
MacTavish et at. vs. The Hudson's Bay Company.
"This was a suit by the plaintiffs, on behalf of themselves and other
Chief Factors and Chief Traders of the Hudson's Bay, claiming to have the
advantage of a rise in the value of the Hudson's Bay House in Fenchurch
Street. Under the provisions of a Deed Poll, dated in'June, 1834, the Chief
Factors and Chief Traders, who are the officers having the control of the
company's affairs in the Hudson's Bay Territory in North America, are
entitled to a certain share in the annual gains and.profits of the company
and for the purpose of estimating these gains and profits in each year there
was to be placed on the debit side of each annual account of the value of
the Hudson's Bay House in London two years back, with interest on such
value at 5 per cent, for two years, and on the credit side of such account
the value of the Hudson s Bay House one year back, with interest at 5 per
cent, for one year. From 1834 to 1865 there had been placed on both of the
annual accounts a fixed sum of £18,872. 5s. 4d., as the value of the Hudson's Bay House. The company being about to sell their old house in
Fenchurch Street, and remove to Lime Street, the attention of the plaintiffs
was called to the increase in the present value of the old house, over its
value in 1834, and they filed this bill to have the old accounts rectified, and
the future accounts taken upon the principle provided by the Deed Poll.
Mr. Giffard, Q. C, and Mr. Horton Smith were for the plaintiffs ; Mr.
Druce, Q. C, Mr. Montague Bere (of the Common Law Bar) and Mr, Thur-
stan Holland for the company.
The Vice-Chancellor said it was shown by the admissions of the
company that there had been a gradual rise in the value of the house,
and that it was worth ^36,000 more in 1865 than it had been in 1834.
But from 1834 to i860 there had been no very material increase in its
value, the chief rise having taken place between i860 and 1865. Under
these circumstances the accounts must be rectified from i860, and in the
accounts for that and the five following years a gradual increase of
;£6,ooo in the value of the house in each year must be entered in the
accounts which were to be taken under the provisions of the Deed Poll." 54
That judgment has never been questianed ; never appealed from ;
sound and just, so it stands as declaratory of English law ad hoc. It
applies, a foi'tiori, to the present case, for, if as to realty, mere bricks
and mortar in the heart of London, England—where these " hunters %
and Indian traders of the American Wild had no hand—these rights, so
adjudged, accrued, certainly, in the same " partnership concern," they,
likewise, did so, as to matter and franchise made and acquired solely
by their service, with its incidental peril of life, and oft life itself, in that
far off wild, the Pacific Sloped solely "—because, as to the necessary
" capital " for the work, that principal and interest was rateably charged
to them, and they paid it, and thus made it their own. So, of the whole
concern, as per bond. Thus, in the stipulated measure of their right,
they were, during the continuance of the above cited organic indenture
and Deed Poll of partnership of 1821, to all intents and purposes, proprietors in all matters, and rights, corporeal and incorporeal, in their integrity, one and indivisible, according to the nature, aim and objective
purposes and raison d'etre of the Company; id est, company "without
prejudice " (as says the Deed Poll of 1834) " to the rights and interests
of the persons entitled to the forty shares" (of Chief Factors and Chief
Traders) "under the aforesaid Deed Poll of 26th March, 1821."
It is to be remarked, in this connection, that the present claim,
nomine John McLeod, Senior, Chief Trader—so designated in the
Company's books and accounts—was—as before shown—one of the
Chief Traders, party, as such, to the said original Deed Poll. That in
this regard his position, at the date of the Treaty, was, if not unique, at
least stronger, and entitled, perhaps, to a closer consideration in accordance with the strict letter and spirit of the original Indenture and Deed
Poll of partnership, viz., of 1821.
The Chief Factors and Chief Traders above cited and referred to,
apart from said McLeod, were all of subsequent appointment, and none
of them were parties, directly or indirectly to the said original instruments.
Further than that, the claims of these latter include—in lump, as
it were, with that on the Oregon Indemnity—share, as per Deed Poll of
" 1834," in the whole "concern "—east, as well as west side of the
Rocky Mountains—territorial and trade.
This appears, more particularly, from the letter of Mr. Miles and
other "retired1' Chief Factors, of date 14th August, 1867, above cited* 55
As to that, or any claim, territorial or trade, beyond what passed
under the Oregon Treaty, the said McLeod estate, prefers no claim.
Its interest in the concern expired with returns to outfit 1857.
DELAY IN SETTLEMENT.
For this, the two Governments—sole parties in the Treaty—are
alone at fault—in mora. Neither the Hudson's Bay Company, nor
any British subjects therein concerned, had the power to enforce
settlement, nor even to move the two Governments, or either of them,
to finally carry out the Treaty in the matter of Indemnity in question.
Therefore no prescription can legally run against the claimants.
On the other hand : That since the settlement, by payment to the
New Hudson's Bay Company in 1867 or 1868, no prescription can be
acquired from the said claimants as (a). They were not notified of it,
nor placed in mora as to it, in any way by the said New Hudson^s Bay
Company, who, in taking the money (the four millions of dollars) simply
appropriated the whole to their own sole use : (b) That the money paid
by the United States Government, in question, is not of the nature of
a debt—as between debtor and creditor, or liability—but is the absolute,
property of the claimants, in deposit and trust, in the hands of said'
company, for delivery, on demand to claimants as sole proprietors thereof ; that such detention conveys no title ; is not subject for prescription ^
comes not under the statute of Limitations. 58
STATEMENT   OF  CLAIM
Of   Estate   John   McLeod, Senior,   Chief   Trader,   Hudson's
Bay Company, on  " Oregon Indemnity. "
Under Treaty, 15th June, 1846.
Indemnity to said company, as being at date of Treaty. $4,000,000
" Forty-hundredths"  (2-5ths)   thereof,   as per  Deed
Poll of 26th March, 1821  1,600,00c
One eighty-fifth of same under said  Deed Poll—Principal $18,823.52  say p£3,873-3-°istg-
Interest from 15th June, 1868, to 15th
Tune, 1892*     22,588.08 say  ^4,648.19.9stg.
Total  $41,411.80        ;£8,522.2.9jstg.
Credential of Undersigned.
Letters of Administration, in London, England, in 1849, to him—
then barrister, in Montreal, Canada—as eldest son of said John McLeod, deceased.
Letters (copy of notice) lodged with the company, at their office,
London ; approved ; and, thereon, ever after, all accounts to said estate,
to him rendered and, on draft, duly paid to authorized agent, viz : firm,
then, of Gillespie, Moffat & Co., London. Letters and authority never
quest 07
APPENDIX  A.
[Extract—Clause 16th—from Charter of Charles II. to "the Governor and Company of Adventurers of England, trading into Hudson's
Bay."]
" And Our Will and Pleasure is, and we do also ordain, that it
shall and may be lawful, to and for the said Governor for the time being,
or his Deputy to be one, to admi? into, and be of the said company, all such Servants or Factors, of or for the said company, and all
such others, as to them, or the most part of them present, at any court
held for the said company, the Governor or his Deputy, being one,
shall be thought fit and agreeable with the orders and ordinances made
and to be made for the Government of the said company."
Extract.
Clause 1st (Organic)—after preamble.
| Now know ye, that we being desirous to promote all endeavours
that may tend to the public good of our people, and to encourage the
said undertaking"—to wit, as therein stated—" for the discovery of a
" new passage into the South-Sea, and for the finding of some trade for
" furs, minerals and other considerable commodities"—"have of our
especial Grace, certain knowledge, and mere motion, given, granted,
ratified and confirmed, and by these presents for us, our heirs and
successors, do give, grant, ratify and confirm, unto our said cousin
Prince Rupert," (and seventeen others, including twelve titled noblemen, four I Esquires," and one John Portman, " citizen and Goldsmith
of London,") " that they, and such others as shall be admitted into the
1 Society as is hereafter expressed sh'all be one body corporate and
"politique, in deed and in name, by the name of the Governor and
" company of adventurers of England, trading into Hudson's Bay." *
* Commonly, briefly, called The Hudson's Bay Company.
t The H. B. C. could not, by law, combine or coalesce with its rival the N. W. C. save by such admission,
integrally, under the charter of the former. The continuing deed-poll of 1834 was in that sense. To have
attempted a partnership otherwise, would have been ultra vires, and entailed forfeiture of charter, at common
law, in public polity.
M. McL.           

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