HUDSON'S BAY COMPANY.

Prior to the extension of a territorial government over Oregon Territory, the settlers had voluntarily formed themselves into a temporary government. While in this situation war occurred with the Indians, and various settlers were killed or taken into captivity by them. Application of the then existing government was made to the Hudson's Bay Company for assistance, which was rendered, and resulted in the relief and restoration of the Americans who had been captured; held that a claim for compensation against the United States under such circumstances should be allowed.

Held, also, that a similar claim for expenditures incurred in procuring, by request of United States officers on the coast, the release of American shipwrecked mariners from captivity by the Indians should be allowed.

In the autumn of 1847, a number of American emigrants and settlers in Oregon were attacked and captured by the Caycuse Indians. In this attack Dr. Whitman, an American missionary, and his wife and eleven others, were murdered, and sixty-four persons captured. These captives were ransomed through the agency of the Hudson's Bay Company.

The country was not at that time under a government regularly established by the United States, but the settlers had formed themselves into an organization and government of their own, and they immediately passed resolves authorizing the enlistment of five hundred men, and the borrowing of ten thousand dollars, to repel the attacks of the Indians, and appointed commissioners to negotiate a loan.

They applied for this purpose to the Hudson's Bay Company. Their agents did not feel authorized to make a loan, but rendered to the volunteers who were raised assistance in provisions and stores to the amount of $1,800, as is alleged by them, and is acknowledged by the officers of the said government. Of this amount, it appears that $599 have been paid by the Oregon government, leaving a balance due of $1,201.

The company also claim a further sum of $1,838 91 of the United States government for goods supplied from Vancouver's Island in December, 1851, on the application of American officers on that coast for the purpose of procuring the release of certain American mariners who were shipwrecked near Queen Charlotte's Sound, and were retained in captivity by the Indians.

HANNEN, agent and counsel for Great Britain.

THOMAS, agent and counsel for the United States.

HORNBY, British Commissoner, delivered the opinion of the commission:

In this case, we are fortunately relieved from any conflict between the parties, as I understand it to be conceded that the case is submitted. to our consideration for such allowance as we think is justly sustained. It will not be denied that the settlers of the Oregon Territory were entitled to the protection and aid of the United States government. She had not, up to the period of the calamity referred to, extended a formal territorial government over the country, but her citizens, in considerable numbers, had gone on, in advance of provision made for them in that respect, and were occupying the country for the ultimate benefit of the United States, and with the early expectation of the formal extension of the powers of the government over them.

While in this situation, they had established, temporarily, a government of their own, and were attacked by the Indians, under circumstances of much barbarity, and which were calculated to put in jeopardy the safety of the whole colony.

The circumstances required immediate effort and assistance, and this assistance, as far as was in their power, was promptly rendered by the agents of the Hudson's Bay Company.

The form of the claim as it originally existed, was not directly against the United States, but no objection is interposed from that cause. The assistance is precisely of the character the government would have rendered, could application have been made to it; and, on every consideration, we are quite sure we shall have its approbation in the allowance of the claim which appears to be preferred here for the first time.

The other item of claim depends on circumstances somewhat similar.

Assistance rendered to shipwrecked mariners is in conformity to the established policy of both governments through their consuls, and other officers abroad, and in this case, the captivity of these men by savages was superadded.

The assistance rendered through the agents of this company, made by request of Americans on the coast, secured the release of these unfortunate men, and I am happy in having the concurrence of my colleague in granting full remuneration for the expenditures incurred in effecting so laudable an object. The claims for these services are therefore allowed.

WILLIAM COOK AND OTHERS.

Where claim was presented by American citizens as next of kin and heir of a deceased intestate in England, whose property had gone into custody of the crown, for want of heirs, held that it did not come within the jurisdiction of the commissioners, and was not within the class of cases designed to be embraced in the convention.

The fact that a case is brought within the letter of the convention is not conclusive as to the question of jurisdiction. The commissioners may go behind this to inquire whether it is within the class of cases that have been recognized and acted upon as matters of international adjudication.

This is a claim for £24,000 and upwards, alleged to be in the custody of her Majesty's government, it being the personal property, and effects of the late Frances Mary Shard, widow, formerly of Trenton, New Jersey.

The claimants assert that they are the only surviving relations, and next of kin of Mrs. Shard, and as such, are entitled to the property of which she died possessed. That Frances Mary Shard was the relict of William Shard, esq., and was the daughter of Robert Rutherford, (an innkeeper,) and his wife Margaret, and was born in Trenton, about the year 1758.

That she left Trenton when about fifteen years of age, went to Europe, and married in London, in 1788, and at the time of her death, in 1819, had no surviving relatives, excepting the children of her father's sister, who, in 1743, married George Davis, a tailor, at Trenton, from whom the claimants are descended.

The claimants allege that the property of Mrs. Shard has gone into the custody of the British government, to be holden in trust for her heirs, and that they now make their claim as such, and as American citizens for its recovery from the British government.

Exception was taken to the jurisdiction of the commissioners, on grounds that will appear in the points taken by the counsel, and was fully argued, and submitted on this question.

HANNEN, counsel and agent for Great Britain:

Contended that the claim was not within the jurisdiction of the commissioners.

The convention was entered into for the settlement of those claiming only upon either government, which might properly have been made the subject of diplomatic action or intervention. Had this case ever been presented to the notice of her Majesty's government by that of the United States, previous to this convention being entered into, the obvious answer would have been, that it was a matter exclusively within the cognizance of the ordinary courts of law, and that the claimants must establish their rights there in the same way that English subjects would be bound to do under similar circumstances.

The same answer must be given now, that the case is presented to the commissioners. It is not intended to invest them with a supreme power in all cases in which a citizen or subject of the one country might assert a claim against the government of the other. Their commission does not authorize them to assume the peculiar functions of the courts of either country.

The universal doctrine now recognized by the common law is, that succession to personal property is governed, exclusively, by the law of the actual domicil of the intestate at the time of his death. (Story's Conflict of Laws, sec. 451.)

It is also well settled by the same authority, sec. 513, that an estate cannot be administered in the absence of a personal representative, and such personal representative in England, must obtain his right to represent the estate from the ecclesiastical courts of the country.

2. It is further contended that the property of Mrs. Shard had never vested in the crown, but was holden by specific agents of the crown, as trustees, answerable in the courts of the country to any rightful administrator who might appear, and that the funds thus holden were, in no proper manner, the funds of the government.

THOMAS, Agent and Counsel for the United States, and J. L. CLARK, counsel for claimants, contended:

I. That the method of treating similar cases in the English courts was inconclusive, as to the question of jurisdiction, and that it was a well known principle that whenever treaties between nations come into collision with local regulations they entirely override and annul them.

This case, is, in its terms, clearly within the provisions of the treaty of February 8, 1853, and any supposed inconvenience in adjudicating on that class of cases should not be permitted to oust the commissioners of their jurisdiction over them.

II. Her Majesty's government has an interest in the subject matter of dispute. The property of Mrs. Shard is now in the hands of the government, and is claimed as the property of the government.

Formerly the right of ultimate heirship was one of the personal rights of the crown, but this right, with various other rights, pertaining to the personal occupant of the crown, has long since been transfered to and vested in, the government, or crown, as distinct from the person. This surrender was made by George III, in consideration of a clear yearly revenue settled upon him, to be paid out of the aggregate funds of the government, for the support of his Majesty's household. (See act of 1 Geo. III, chap. 12.) Similar provisions have been made on each subsequent accession to the throne, as see 1 Geo. IV, chap. 1; 2 and 3 William IV, chap. 116; 1 and 2 Victoria, chap. 2.

In this case the Queen, in her private capacity, is wholly uninterested as to what is done with the property now claimed. Her personal income is, in no manner, increased, diminished, or effected by any disposition which has been, or may be hereafter made of it.