Front matter (continued 4)

"Many projects had been started by the inhabitants, but, for want of means and encouragement, failed. This fate was predicted for the Milling Company. But, after much labor and difficulty, they succeeded in getting a saw mill erected, and ready to run; and entered into a contract to have a grist mill erected forthwith. And now, as they have succeeded, where is the Hudson Bay Company? Dr. McLoughlin employs hands to get out a frame for a saw mill, and erect it at the Willamette falls; and we find, as soon as the frame is up, the gearing which has been made at Vancouver is brought up in boats; and that which caused a feeble company of American citizens months of toil and embarrassment is accomplished by the chief factor of the Hudson Bay Company in a few weeks; (he has men and means); and it is said by him, that in two weeks his mill will be sawing. And what will be the consequences? Why, if the Milling Company sell for $15 per thousand, he can sell for $12; if they reduce the price to $10, he can come to $8, or $5, or $2 per thousand. He says he will have a grist mill started as soon as he gets the saw mill in operation.

"All the wheat raised in Oregon they are anxious to get, as they ship it to the Russians on the Northwest coast. In the first place, they measured the wheat in a half bushel, called by them imperial measure, much larger than the standard measure of the United States; this not answering, they next proceeded to kick the half bushel with the foot, to settle the wheat; then they brought up a measure larger than the former one; and now they fill this measure, then strike it three times with a stout club, and then fill it up, and call it fair measure. Against such proceedings we need law that will be respected and obeyed.

"About twelve or fourteen years ago the Hudson Bay Company blasted a canal a few feet to conduct water to a mill they were going to build, the timber for which is now lying at the falls rotting. They, however, abandoned the thing altogether, and built their mills on the Columbia, about six miles above Fort Vancouver, on the north side of the river.

"In the year 1838, agreeably to orders left by Mr. Slacum, a house was erected at the falls, to secure the claim for him.

"In 1840, the Methodist mission erected buildings at the falls, and stationed two families there, and made a claim to sufficient land for their buildings, not interfering with any others who might wish to build. A short time previous to this, Dr. McLoughlin had a storehouse erected for the company, not occupied, however, further than to store wheat and other articles in, and as a trading house during the salmon season.

"After this, in 1841, a shantee was erected, and a man kept at the falls, whose business it was to trade with the Indians for furs and salmon, and look out for the Doctor's claim, he said, and to forbid persons building at the falls, as some had built, and others were about building. This man was, and still is, a servant of the Hudson Bay Company.

"During the years 1841 and 1842, several families settled at the falls, when Dr. McLoughlin, who still resides at Fort Vancouver, comes on the ground, and says the land is his, and any person building without his permission is held as a trespasser. Without reference to any person's right or claim, he employs a surveyor to lay out the plat; and as a bill was before the Senate of the United States to grant to every white male inhabitant a mile square, he has a mile run out to suit his views, and lays out a town plat at the falls, and calls it Oregon City. And although some, for peace sake, asked him for the lots they had already in possession, and which he appeared very willing to grant, the Doctor now felt himself secure, and posted up the annexed paper, (marked A) which is the original; and all who had lots were required to pay Mr. Hastings five dollars for a deed of land which they knew very well the grantor did not own, and which we hope he never will own, but that Congress will pass a special act granting to each man his lot and improvements. Those that applied received (if they had a house on the lot) a deed, a copy of which is annexed, (marked B); if they had no house, a bond was given for five dollars, a copy of which is annexed, (marked C). To those that applied and paid their five dollars, all was right with the Doctor; while those who considered his title to the land not good, and that therefore he had no right to direct who should build and who should not, had their lots sold to others. In one case the purchaser came to the original claimant, and ordered him to stop digging the ground which he was preparing for a garden, and commanded him to remove his fences, as he had Dr. McLoughlin's bond in his pocket for the lots; and if he did not move his fence he would, and take forcible possession. Those who desired to have no difficulty, and did not apply for a deed, have lost their lots, the Doctor's promise, and all. And Mr. Hastings (the Doctor's agent) is now offering for sale the lots on which part of the mission buildings stand; and if he succeeds in finding a purchaser, they must either contend or lose their buildings.

"Dr. McLoughlin had held claims in other places south of the Columbia river—at the Tualatin plains and Klakamus plains he had huts erected, to prevent others from building; and such is the power of Dr. McLoughlin, that many persons are actually afraid to make their situation known, thinking, if he hears of it, he will stop their supplies. Letters were received here from Messrs. Ladd & Co., of the Sandwich Islands, in answer to a letter written by the late Mr. Ewing Young, for a few supplies, that orders were received, forbidding the company's vessels carrying any goods for the settlers of Oregon. Every means will be made use of by them to break down everything that will draw trade to this country, or enable persons to get goods at any other place than their store.

"One other item, and we are done. When any United States Government officers of distinction arrive, Vancouver is thrown open, and every facility afforded them. They were even more condescending to the settlers during the time the exploring squadron was in the Columbia; nothing was left undone to give the officers a high opinion of the honorable Hudson Bay Company. Our Indian agent is entirely dependent on them for supplies and funds to carry on his operations.

"And now your memorialists pray your honorable body, that immediate action of Congress be taken in regard to this country, and good and wholesome laws be enacted for our Territory, as may, in your wisdom, be thought best for the good of the American citizens residing here.

"And your memorialists will ever pray.

"Robert Shortess, A. E. Wilson, William C. Remick, Jeffrey Brown, E. N. Coombs, Reuben Lewis, George Davis, V. Bennet, J. Rekener, T. J. Hubbard, James A. O'Neil, Jer. Horregon, William McKarty, Charles Compo, John Howard, his + mark, R. Williams, G. Brown, John Turner, Theodore Pancott, A. F. Waller, John Hofstatter, G. W. Bellamy, William Brown, A. Beers, J. L. Parrish, William H. Gray, A. D. Smith, J. C. Bridges, Aaron Cook, A. Copeland, S. W. Moss, Gustavus Hines, George W. LeBreton, J. R. Robb, J. L. Morrison, M. Crawford, John Anderson, James M. Bates, L. H. Judson, Joel Turnham, Richard H. Ekin, H. Campbell, James Force, W. H. Willson, Felix Hathaway, J. Lawson, Thomas J. Shadden, Joseph Gibbs, his + mark, S. Lewis, Jr., Charles Roy, William Brum, S. Davis, Joseph Yatten, Daniel Girtman, C. T. Arrendrill, A. Tonner, David Carter, J. J. Campbell, W. Johnson, John Edmunds, W. Hauxhurst, W. A. Pfeiffer, J. Holman, H. B. Brewer, William C. Sutton.

"Willamette, Oregon Territory, March 25, 1843."

A.

NOTICE

"Notice is hereby given to all whom it may concern, that those who have obtained grants of lots in Oregon City will be expected to call upon L. W. Hastings, my authorized agent at Oregon City, and obtain a bond for a deed or deeds, as the case may be. Those who hold claims to any lot, and who comply with the above requisite on or before the first day of February next, will be entitled to their lot or lots; otherwise, the lots upon which they hold a claim will thereafter be subject to any disposition which the undersigned may think proper to make of them.

"John McLoughlin."

"January 18, 1843."

"Oregon City, March 27, 1843."

"We, the undersigned, do hereby certify that the within [above] notice of John McLoughlin was posted up in the most public place in this town.

"R. Shortess." A. E. Wilson."

B.

DEED—JOHN McLOUGHLIN TO WALTER POMEROY

"Know all men by these presents, that I, John McLoughlin, of Fort Vancouver, in the Territory of Oregon, for and in consideration of the sum of one dollar, to me in hand paid by Walter Pomeroy, of Oregon City, of the Territory aforesaid, the receipt whereof is hereby acknowledged, have this day, and do by these presents, remit, release, and forever quit claim, unto the said Pomeroy, his heirs and assigns, all and singular the following piece, parcel, and lot of land, bounded and described as follows, to wit: commencing at the northeast corner, running thence southerly sixty-six (66) feet to a stake; thence westerly one hundred (100) feet to a stake; thence northerly sixty-six (66) feet to a stake; thence easterly one hundred (100) feet to a stake at the place of beginning—being lot number four, (4,) in block number three, (3,) in the town of Oregon City, in the Territory of Oregon, which will more fully appear from a reference to the map and plan of said town:

"To have and to hold the same, together with all and singular the privileges and appurtenances thereunto in any wise appertaining or belonging, unto the said Pomeroy, his heirs, executors, administrators, or assigns, forever.

"And I, the said McLoughlin, for myself, do avouch and declare, that I am the true and proper claimant of and to the said premises and lot of land, and that I have in myself full power, good right, and sufficient authority, to remit, release, and quit by claim, to all and singular my right, title, interest, and claim, in and to said lot and premises, in manner and form aforesaid.

"And I, the said McLoughlin, do hereby covenant and agree to warrant and defend the said premises, together with the privileges and appurtenances thereunto appertaining or belonging, to the said Pomeroy, his heirs and assigns, against all lawful claims of all persons whomsoever, the claims of the Government only excepted.

"In testimony whereof, I, the said McLoughlin, have hereunto set my hand and affixed my seal, this the 2d day of March, A. D. 1843.

"John McLoughlin, (L. S.)"

"Per L. W. Hastings, his Agent."

"We, the undersigned, do hereby acknowledge that the above is a true and correct copy of the original.

"R. Shortess." "A. E. Wilson."

C.

BOND—JOHN McLOUGHLIN TO ALBERT E. WILSON

"Know all men by these presents, that I, John McLoughlin, of Fort Vancouver, in the Territory of Oregon, am held and firmly bound unto Albert E. Wilson, of Oregon City, in the Territory aforesaid, in the full sum of five hundred, federal money; for the punctual payment of which, well and truly to be made, I bind myself, my heirs, executors, or administrators, firmly by these presents.

"In testimony whereof, I have hereunto, below, set my hand and affixed my seal, this the 26th day of December, A. D. 1842.

"Now, know ye, that the condition of the above obligation is such, that whereas the said Wilson hath this day, and doth by these presents, purchase of the said McLoughlin all and singular the following pieces, parcels, tracts, and lots of land, namely: lots No. four (4) and five (5) in block No. two, (2), in the town of Oregon City, in the Territory of Oregon, as is more fully shown by the map and plan of the said town; and hath, and by these presents doth, agree to build upon and improve each of the said lots within the term of one year from the date of these presents. In consideration of which, the said McLoughlin hath and doth by these presents covenant and agree to make to the said Wilson a good and sufficient quit claim deed for and to all and singular the above-mentioned pieces, parcels, tracts, and lots of land, whenever he, the said Wilson, shall have complied with the above conditions on his part. Now, if the said McLoughlin shall well and truly make, or cause to be made, the said deed to the said Wilson, upon the said Wilson's complying on his part with the above condition, then and in such case the within obligation shall become entirely void and of no effect; otherwise, to be and remain of full force and virtue.

"John McLoughlin, (L. S.)"

"Per L. W. Hastings, his Agent."

"We, the undersigned, do hereby acknowledge the above to be a true and correct copy of the original.

"R. Shortess." "A. E. Wilson."[61]

W. H. Gray was one of the signers of the Shortess petition. In his History of Oregon, pp. 296, 297, he says, in relation to certain persons who did not sign the Shortess petition:

"Mr. George Abernethy declined to sign this petition through fear of injuring the Methodist Mission in its secular or business relations with the Hudson's Bay Company.

"Hugh Burns would not sign it because he did not wish Congress to be asked to confirm his title to lots and improvements.

"Jason Lee, though he thought it right to petition Congress for protection, yet on account of his position as Superintendent of the Methodist Mission, and the influence of the [Hudson's Bay] Company against them should he sign it, thought it best not to give his name.

"Dr. I. L. Babcock refused, because, by signing he would lose his influence with the [Hudson's Bay] company.

"Walter Pomeroy, ditto.

"Dr. Bailey did not wish any protection from the Congress of the United States.

"Rev. H. K. W. Perkins was ashamed of the petition. 'What does Congress care about measuring wheat? or a contest between two milling companies?'

"George Gay did not care anything about it. Congress might do as it pleased; he did not want its protection.

"The people in Tualatin Plains did not have an opportunity to sign or refuse for want of time to circulate it in that section. The bearer of it, William C. Sutton, was on his way to the States across the Rocky Mountains."

Thurston in his speech in Congress December 26, 1850, said, as to the author of the Shortess petition: "I know the gentleman who wrote the original, whom to know is to respect, to listen to to believe. He is a gentleman of the highest standing in Oregon, of some twelve or fourteen years residence and who would be universally believed on any subject on which he would presume to speak."[62] Thurston certainly did not refer to Shortess. The latter, while a man of ability and some education, was of an ascetic disposition, intense in his dislikes and given to sarcasm. He was not a popular man.

That the Shortess petition was written by George Abernethy is shown in a foot-note on page 207 of volume 1, History of Oregon, Bancroft's Works, where it is said that "such is the statement of Shortess made to Elwood Evans by letter in 1867," quoting from a manuscript history of Oregon written by Evans for Bancroft. Subsequently Evans wrote an elaborate history of Oregon and Washington, entitled "History of the Pacific Northwest," which was published in 1889. On page 243 of volume 1 of this history Evans says that September 1, 1867, Shortess wrote an autograph letter to Evans that Shortess originally drew up notes or a summary of the subjects he intended to embrace in the petition. That Shortess requested Abernethy "to write it in proper form, which he did, but refused to sign it or allow it to be circulated in his handwriting, fearing it might injure the mission. I had it copied by A. E. Wilson. It was circulated and, through his assistance, sent to Washington."

Shortess arrived in the Willamette Valley in April, 1840. He afterwards took up a land claim near Upper Astoria. He sold his claim and became a recluse. He died in 1877. Some time after he signed the Shortess petition he appears to have changed his opinions of the Hudson's Bay Company, and especially of the Methodist missionaries. He wrote a document about his trip to Oregon which he gave to Mr. William Chance. The latter gave this document to the Oregon Pioneer Association. It is published in full in the Transactions of the Oregon Pioneer Association for 1896, pp. 92-107. It is a very interesting document. In it he refers to the Methodist missionaries in terms which, at least, are not complimentary.

DOCUMENT I

Ricord's Proclamation; letters of A. Lawrence Lovejoy and Rev. A. F. Waller of March 20, 1844; Ricord's Caveat; invalidity of Waller's claim to Dr. McLoughlin's land; and excerpts from letters of Rev. Jason Lee to Rev. A. F. Waller and Rev. Gustavus Hines, written in 1844.

The following is a copy of a proclamation dated December 20, 1843, and issued by John Ricord, as attorney for Rev. Alvin F. Waller. The original of this document in the handwriting of Ricord, and signed by him, pasted on cloth, is in the possession of the Oregon Historical Society. Said original was publicly posted at Oregon City by Waller after Ricord left for the Hawaiian Islands. It shows weather stains, but is perfectly legible.

"To The People of Oregon.

"Fellow Citizens,

"Having been Retained professionally to establish the Claim of Mr. Alvin F. Waller to the Tract of Land on the East Bank of the Wallammette River, sometimes called the Wallammette Falls Settlement and sometimes Oregon City, I consider it a duty to my Client and the public, to state briefly and concisely the several circumstances of his case, as they really exist, in order that his motives may not be impugned and his intentions misunderstood and misrepresented.

"The public are already aware that my client commenced the Occupancy of his Farm, in the spring of A. D. 1840, when no one resided at the falls; and that, in the course of that Summer, he built his Home, moved his family into it, and cleared and fenced a good portion of the Land, from which, in the ensuing years A. D. 1841 & 1842 he raised successive crops of corn, Potatoes and other vegetables usually cultivated by Farmers. That he remained thus occupying undisturbed, until the month of December A. D. 1842, about two years and six months, when Doctor McLoughlin caused his Farm to be surveyed, for the purpose of selling it in subdivisions to American Citizens. It has since been currently reported and quite generally believed, that my client had renounced his right in favor of Doctor McLoughlin. This I am authorized to contradict, having perused the letter written by Mr. Waller, which not only contains no renunciation, but on the contrary, is replete with modest and firm assertions of his rights in the premises: offering at the same time to relinquish his claim, if the Doctor would comply with certain very reasonable and just conditions. Upon this offer, the parties had come to no final conclusion, until my arrival in the Colony, when Doctor McLoughlin attempted to employ me to establish his claim, disregarding the rights of all other persons—which, I declined doing. Mr. Waller thereupon engaged me to submit the conditions a second time to the Doctor, for his acceptance or rejection; which I did in the following words:

"1st. That your preemptive line be so run as to exclude the Island upon which a private Company of Citizens have already erected a Grist Mill—conceding to them so much water as may be necessary for the use of said Mill.

"2d. That Mr. Waller be secured in the ultimate Title to the two city Lots now in his possession and other lots not exceeding in superficial area five Acres, to be chosen by him from among the unsold lots of your present Survey.

"3d. That the Rev. Mr. Lee on behalf of the Methodist Episcopal Mission, be in like manner secured in the lots claimed for the use of said Mission. They consist of Church and Parsonage lots and are well known to the public.

"I received a letter from Dr. McLoughlin dated 10th Novr. 1843, in answer to mine, in which he declines complying with the above Conditions, and thus puts an end to the offer of my Client to relinquish his right of Preemption. Under these circumstances Mr. Waller has now applied to the Supreme Court of the United States, which, under the Constitution has original jurisdiction of 'all cases in Law & Equity, arising under Treaties,' to grant him a Commission for perpetuating the testimony of the facts in his case, de bene esse, in order that, whenever Congress shall hereafter see fit to prescribe by law the conditions and Considerations, he may be enabled to demand of the United States, a Patent; also praying the Court to grant him such other relief in the premises as may be consonant with Equity and good conscience.

"The Legality of Mr. Waller's claim rests upon the following Grounds:—

"1st. He was a citizen of the United States of full age and possessed of a family when he first came to reside on the premises. 2d. He built a House upon them and moved his family into it; thus becoming in Fact and in Law a Householder on the land. 3d. He cleared, fenced and cultivated a portion of it during two years and six months, before he was disturbed in his actual possession. And 4th. That he is not at this moment continuing the cultivation of his Farm, is not his fault since it was wrested from him.

"The Illegality of Doctor McLoughlin's Claim rests upon the following Grounds:—

"1st. He is a British Subject, owing allegiance to a Foreign Power, and has so continued to be ever since the Spring of A. D. 1840. For this reason alone he could not acquire preemption to lands in the United States.

"2d. He is the Chief Officer of a Foreign Corporate Monopoly. For this reason alone he could not acquire preemption to lands in the United States.

"3d. He does not now and never did reside on the land in question, but on the contrary, he resides and has always continued to reside on the North side of the Columbia River, the Section of country actually in dispute between the two Governments, about Twenty miles from the land claimed by Mr. Waller, and there he is obliged to remain, so long as he continues to be Chief Factor.

"4th. He is not in fact the Claimant. The Hudson's Bay Company, a Foreign Corporation, is in fact the Claimant while Doctor McLoughlin only lends his name; well knowing, that a Corporation even though it be an American one, can not acquire a preemption. This is evinced by the employment of men to be his Agents and to sell lots for him, who are at the same time partners in and receiving dividends and Salaries from the Company.

"5th. The pretentions of Doctor McLoughlin arose, if at all, two years and six months after the actual Settlement of Mr. Waller; and therefore they are in direct violation of the Treaty of A. D. 1827: Converting the mutual and joint occupancy into an exclusive occupancy by British subjects.

"6th. The Treaty of joint occupancy [1827] does not and was never intended on the part of the United States, to confer any rights of citizenship upon Foreigners. The Power to confer such rights is by the Constitution reserved to Congress. And the right to acquire title by preemption is peculiar to citizens.

"Those fellow citizens are the Facts and some of the Points of Law in my client's case. Upon the same principle contended for by Dr. McLoughlin, any of you may incur the risk of being ousted from your Farms in this Colony, by the next rich foreigner who chooses to take a fancy so to do, unless in the first instance, you come unanimously forward and resist these usurpations. It is not my client's intention to wrong any who have purchased Lots of the Doctor, and to guard against the injury which might result to individuals in this respect, I have carefully drawn up the Form of a Bond for a Warantee Deed, which Mr. Waller is at all times ready, without any further consideration, to execute to any person who has, in good faith, bought of the Doctor, prior to the date of this notice, by being applied to at his residence. Mr. Waller does not require one cent of money to be paid to him as a Consideration for his Bonds—the trouble, expense and outlays they have already incurred, with the desire to save all such persons harmless from pecuniary loss, is a good and sufficient Consideration in Law to bind him in the proposed penalty of One Thousand Dollars. See Comyns. Digest, Assumpsit B.

"I am of opinion that Mr. Waller has rights in the premises, which neither Doctor McLoughlin nor even Congress by any retrospective legislation can take away from him;—and therefore, fellow citizens, in sincere friendship, I would counsel you to lose no time in applying to him for your new Bonds.

"John Ricord,"

"Counsellor in the Supreme Court of the United States and Attorney for Alvin F. Waller."

"Dated 20th December, 1843."

The following two letters from A. L. Lovejoy to A. F. Waller and from Waller to Lovejoy, each dated March 20, 1844, are in reference to the foregoing proclamation by Ricord as attorney for Waller. These letters are in the handwriting of Lovejoy and Waller, respectively. The letter of Waller is shown by the line below Waller's signature to be a copy which he made and kept to show what he had written. These letters are in the possession of the Oregon Historical Society. They were among Waller's private papers at the time of his death.

"Wallamette Falls 20 Mar. 1844."

"To the "Revd. A. F. Waller—

"I have been directed by Dr. McLoughlin to make some enquiries of you in relation to a letter which appears to have been written by yourself to him relative to his claim. Dr. McLoughlin observes in your notice to the People of Oregon words like the following:

"'It has since been currently reported and quite generally believed that my client had renounced his right in favor of Dr. McLoughlin. This I am authorized to contradict having perused the letter written by Mr. Waller which not only contains no renunciation but on the contrary is replete with modest and firm assertions of his rights in the premises.'

"Please have the kindness to say whether you wrote such a letter as there referred to and if so. As Dr. McLoughlin has never received anything of the kind allow him through me to solicit a copy thereof and much oblige.

"I am Revd. Sir, "Your humble and obt. servant, "A. Lawrence Lovejoy."

"Willamette Falls, 20 Mar. 1844."

"Mr. Lovejoy. "Dear Sir:

"The letter referred to in the Notice was one written to Rev. J. Lee in answer to one he wrote me. I think I have never written a line to Dr. McLoughlin on any subject. Mr. Lee I presume has the letter with him.

"I am yours truly, "A. F. Waller."

"Copy of a reply to the within."

The following copy and statement of John Ricord's caveat or notice as attorney for Rev. Alvin F. Waller to Dr. McLoughlin is taken from Mrs. Frances Fuller Victor's volume, The River of the West, page 358: "'You will please to take notice that my client, Mr. A. F. Waller, has taken formal measures at Washington to substantiate his claim as a preemptor and actual settler upon the tract of land, sometimes called the Wallamet Falls settlement and sometimes Oregon City, comprising six hundred and forty acres; and being aware that, although a foreigner, you claim to exercise acts of ownership over said land, this notice is given to apprise you that all sales you may make of lots or other subdivisions of said farm, after the receipt hereof, will be regarded by my client, and by the government, as absolutely fraudulent, and will be made at your peril.'"

Then followed the grounds upon which the Doctor's claim was denied. "First, that he was an alien; Secondly, that he was the chief of a foreign corporate monopoly; Thirdly, that he had not resided upon the land in question for a year previous; Fourthly, that he did not hold the land for himself but the Company; Fifthly, that his claim, if he had any, arose two years subsequent to Mr. Waller's settlement thereon. This flattering document closed with Mr. Ricord's regrets that he had 'failed to make an amicable compromise' of the matter between the Doctor and his client, and also that his 'client had been driven to the vexatious proceedings of the law, in order to establish his rights as an American citizen.'" This caveat or notice was served on Dr. McLoughlin in 1844 prior to April 4, after Ricord left Oregon for the Sandwich Islands.

The attempt of Rev. A. F. Waller to assert any right to, or to procure the land claim of Dr. McLoughlin, or any part of it, at Oregon City, under the law relating to pre-empting lands was absurd as well as invalid. Under the act of Congress of September 4, 1841, then in force, relating to the pre-emption of public lands of the United States, it was necessary that the lands should be a part of the public lands of the United States. The Conventions of joint-occupancy were then in force and neither Great Britain nor the United States exercised jurisdiction over the lands in the Oregon Country.

In addition to other requisites of the pre-emption law, no person could pre-empt more than one hundred and sixty acres, and the law required the intending pre-emptor "to enter with the Register of the Land-Office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land," etc.

There was no United States land district in Oregon nor any Register of any United States land-office. There had been no public surveys of land in Oregon. No lands could be legally pre-empted which had not been officially surveyed by authority of the United States.[63]

In the case of Lytle v. State of Arkansas, 9 Howard (U. S. Supreme Court) 314, it was held, concerning a claim to pre-emption, that "until sanctioned by law, it has no existence as a substantive right." In the case of Brown v. Coursen, 16 Oregon, 388, it was held that a pre-emption is a right derived wholly from statute and a substantial compliance with the statute is necessary; and the condition must exist which would enable the pre-emptor to acquire the land under the statute. In the case of Stark v. Starrs, 6 Wallace (U. S. Supreme Court) 402, it was held that even the act of August 14, 1848, organizing the Territory of Oregon, did not extend over Oregon any portion of the preëmption act of September 4, 1841.

Ricord and Rev. Jason Lee sailed on the same vessel from the Columbia River bound to the Hawaiian Islands. They left Oregon City January 4, but did not cross the Columbia River bar until February 3, 1844. Ricord did not intend to return to Oregon. He made his home at the Hawaiian Islands (then called Sandwich Islands) and died there. Rev. Jason Lee intended merely to make a trip to the Eastern States and return to Oregon. He wished to see the Missionary Board in New York. He also wished to go to Washington to see about land matters, particularly those which the Methodist Mission wished to obtain the title to. When he arrived at Honolulu he first learned that he had been removed as Superintendent of the Oregon Mission, and that Rev. George Gary was on his way to take charge. February 28, 1844, Rev. Jason Lee sailed on a small schooner called the "Hoaikaika" for Mazatlan, Mexico.[64] After his arrival at Mazatlan, Jason Lee crossed Mexico. He arrived in New York May 27, 1844. In June he went to Washington. On his return to New York he appeared before the Missionary Board for several days, beginning with July 1, 1844, and submitted his oral report on the Oregon Mission.

As relating to land claims in Oregon, I make the following excerpts from two letters written by Rev. Jason Lee after leaving Oregon. The originals of these letters are in the possession of the Oregon Historical Society. The first of these letters was written on board the schooner Hoaikaika, March 23, 1844, to Rev. A. F. Waller. In this letter Jason Lee says: "I paid Mr. Ricord Two hundred and Fifty dollars for you and shall inclose your order to Bro. Abernethy.... What the result of your land claim will be, of course, I can form no better opinion than when I left. But I have less hopes of effecting anything for the Mission more than to prepare the way for something to be done at the proper stage, that is, whenever the Government shall be prepared to grant title.... I long to hear how you are getting on with Dr. —— &c., and how the good cause is prospering. May the Lord bless all who have embraced his cause and keep them unto 'that day.'"

The second of these letters is to Rev. Gustavus Hines. It is dated at New York July 1, 1844, and written after the return of Rev. Jason Lee from Washington. He wrote: "Met a favorable reception there [Washington] and there is every reason to expect that the land claimed will be cheerfully accorded to us.... Please tell Bro. Waller that his claim is filed in the Office of the Commissioner General of the land office. This will probably secure his claim, though the Supreme Court will probably take no action till an Oregon Bill passes." Waller, however, had "surrendered" all his rights in "his" (the McLoughlin) "land claim" April 4, 1844.[65]

DOCUMENT J

Agreement between Dr. John McLoughlin, Rev. A. F. Waller, and Rev. David Leslie, of April 4, 1844; statement of cause and manner of making said agreement.

The following agreement is in the possession of the Oregon Historical Society. It was among the private papers of Rev. A. F. Waller at the time of his death. This instrument is certified to be a true copy of the original by W. W. Raymond, one of the lay Methodist missionaries. Apparently there was but one original of this instrument, although executed by Dr. McLoughlin, Rev. Alvan F. Waller and Rev. David Leslie, and therefore a copy was made of the same and certified by Raymond for Waller's use.

ARTICLES OF AGREEMENT

"Article of Agreement made and entered into this fourth day of April A. D. 1844 between John McLoughlin and Alvan F. Waller both of Oregon City in the Territory of Oregon:

"Whereas certain conflicting claims to a tract of land situated at the Falls of the Wallamette River on the east side of said River containing six [hundred] and forty acres and surveyed by Jesse Applegate in the month of December A. D. 1843 have existed between the aforesaid parties and the said parties are now willing and desirous to arrange all differences existing between them in regard to the same;

"It is therefore agreed as follows: The said Alvan F. Waller agrees to surrender make over and forever abandon unto the said John McLoughlin his heirs administrators and assigns and in his favor, all claims rights and pretensions whatsoever which he now has within or to the said above mentioned Tract or survey of land or any part thereof. The said Waller further agrees to withdraw any proceedings which he or his attorney may have commenced in any of the courts of the United States touching the said tract or survey of land and to abstain from at any future time instituting any proceedings to secure to himself the title of the said tract or survey of land in opposition to the said McLoughlin or to his detriment in any way whatsoever, or to sell or otherwise dispose of to any person whatsoever other than the said McLoughlin any claim or right which he the said Waller may have in the same.

"And the said John McLoughlin agrees in consideration of the above mentioned acts and agreements on the part of the said Alvan F. Waller to pay to the said Waller the sum of five hundred dollars and further to convey to the said Waller the premises now occupied by him being lots number two and seven in Blocks number one in Oregon City in said survey—also the entire Blocks numbers fifty four, forty one and eighteen and lots one, two, three, six, seven, and eight in Block number eleven all included in the plot Oregon City aforesaid; and the said John McLoughlin further agrees to give to said Alvan F. Waller his Bond conditioned for a good and sufficient Warrantee Deed to all the above specified premises.

"And the said John McLoughlin further agrees to convey to David Leslie now acting superintendent of the Oregon Methodist Episcopal Mission lots three, four, five and six in Block number one and also lots numbers four and five in Block twenty eight and also the entire Block number twenty nine on the plot of Oregon City aforesaid; and the said John McLoughlin further agrees to give to the said David Leslie his Bond conditioned for a good and sufficient warrantee deed accordingly to all the above specified premises.

"Signed with our names and sealed with our seals this day and year first above mentioned.

"John McLaughlin"⎧ ⎫

"Alvan F. Waller"⎨L. S.⎬

"David Leslie"⎩ ⎭

"Witnesses"

"James Douglas"

"Elijah White"

"A. L. Lovejoy"

"W. Gilpin."

"True Copy of the original.

"Attest: W. W. Raymond.

"Wallamette Falls July 24, 1844."

A copy of the bond, dated April 4, 1844, given by Dr. John McLoughlin to Rev. A. F. Waller, as provided in said Articles of Agreement of the same date, is in the possession of the Oregon Historical Society. It is also certified to be a true copy by said W. W. Raymond. This certified copy was, also, among the private papers of Rev. A. F. Waller at the time of his death.

Frances Fuller Victor, who had access to original documents, says that the reasons why the agreement set forth in this Document J, came to be entered into are as follows: In April, 1844, Dr. Elijah White suggested that the differences between Dr. McLoughlin and A. F. Waller about the Oregon City land claim might be settled by arbitration. Dr. McLoughlin finally consented to this plan. The arbitrators chosen were Dr. Elijah White, Major Gilpin, and James Douglas, on the side of Dr. McLoughlin, and Revs. David Leslie and A. F. Waller on the side of Waller and the Methodist Mission. All the arbitrators, except Douglas, were citizens of the United States. Major Gilpin had attended West Point and had been an officer in the regular army of the United States. He came to Oregon with Fremont's expedition. Rev. David Leslie was then the acting Superintendent of the Methodist Mission.

Waller insisted that he should receive five hundred dollars and five acres for himself and the Methodist Mission should receive fourteen lots. White and Gilpin considered this exorbitant and opposed it. They were finally persuaded by Douglas to agree to Waller's terms. Douglas said to Dr. McLoughlin, "I thought it best to give you one fever and have done with it. I have acceded to the terms and signed the papers."[66]

While Dr. McLoughlin signed these agreements and executed these bonds and carried them out as far as he was able to, he was not pleased with being compelled to accede to these demands, which he considered unjust. If Waller, either for himself alone or for himself and the Methodist Mission, were entitled to the 640 acres of Dr. McLoughlin's land claim, Waller and it should have insisted on having the whole claim. The proposition of Waller to accept $500 and five acres of land and for Dr. McLoughlin to give the Mission fourteen lots shows that in the minds of Waller and the Mission his and its claims were, to say the least, very dubious ones. Dr. McLoughlin could but consider that he had been forced to comply with these demands, not as a question of right, but as a question of expediency and to get rid of these false claims.

DOCUMENT K

Statement of the career in Oregon of Judge W. P. Bryant.

I have been unable to learn much about Judge W. P. Bryant, except his actions in connection with Abernethy Island and against Dr. McLoughlin. To his Biennial Report of 1899 (page 190) Hon. H. R. Kincaid, as Secretary of State for Oregon, added an Appendix giving short biographies of the Chief Justices of Oregon and of other Oregon officials. Of Judge Bryant the Secretary of State said only: "There are no official records in the Department of State to show when Mr. Bryant assumed the duties of his office nor for what period he served. The decisions of the Supreme Court at the time when he served were not reported. Mr. Bryant was appointed by the President from some eastern state and only served here a short time when he again returned east."

In the History of Oregon in Bancroft's Works, it is said: That Judge Bryant's home was in Indiana; that he was appointed Chief Justice of Oregon in August, 1848, and arrived in Oregon April 9, 1849; that he resigned as Chief Justice January 1, 1851, having spent but five months in Oregon; that upon his resignation he returned to Indiana, where he soon died.

DOCUMENT L

Letter of Dr. John McLoughlin, published in the "Oregon Spectator," Thursday, September 12, 1850.

"Mr. Editor:

"In the Congressional Globe of May 30th, 1850, is the following language of Mr. Thurston, the Delegate from Oregon, to which I wish to invite the attention of the public.

"'And as to the humbug about the Hudson's Bay Company, mentioned by the gentleman from Missouri [Mr. Bowlin], I have to say that I know of no humbug about it; this Company has been warring against our Government for these forty years. Dr. McLoughlin has been the chief fugleman, first to cheat our Government, out of the whole country, and next to prevent its settlement. He has driven men from their claims, and from the country, to stifle its efforts at settlement. In 1845 he sent an express to Fort Hall, eight hundred miles, to warn the emigrants, if they attempted to come to the Willamette, they would all be cut off; they went and none were cut off. How, sir, would you reward Benedict Arnold, were he living; he fought the battles of the country, yet, by one act of treason, forfeited the respect of that country. A bill for his relief would fail, I am sure; yet this Bill proposes to reward those who are now, have been, and ever will be, more hostile to our country, because more Jesuitical.'

"What Mr. Thurston means by 'warring against our government for these forty years,' I know not. I am certain, however, that the H. B. Co. had a right to carry on trade under the treaty of joint occupation of the country—even were we to look no farther for another foundation of the right. I am sure, moreover, that the business of the Company was so managed as to bear the strictest scrutiny, and to be in all respects subservient to the best interests of the country, and the duties of religion and humanity. The government and policy of the Company were such as to render traveling safe, and the Indians were friendly to whites. When the Hudson's Bay Company first began to trade with these Indians they were so hostile to the whites that they had to mount guard day and night at the establishment, have sentinels at the gates to prevent any Indian entering, unless to trade, and when they entered, to take their arms from them. The Columbia could not be traveled in parties of less than sixty well armed men; but, by the management of the Company, they were brought to that friendly disposition that two men, for several years back, can travel in safety between this and Fort Hall.

"Mr. Thurston is pleased to describe me as 'chief fugleman to the Hudson's Bay Company.' This is a term which he probably gathered from the vocabulary in which he found the word 'gumption,' with which he recently garnished another dish, and which he seems to have prepared for appetites similar to his own. By the use of this, and such like epithets it will at once be seen that he has a field of literature which he is likely to occupy without a rival, and the exclusive possession of which no one will deny him. Neither my principles nor my tastes lead me in that direction. But I am described as a 'fugleman' of the Hudson's Bay Company; first to cheat our Government out of the whole country, and next to prevent its settlement. I am an old man, and my head is very white with the frost of many winters, but I have never before been accused as a cheat. I was born a British subject—I have had for twenty years the superintendence of the Hudson's Bay Company's trade, in Oregon, and on the North West Coast; and may be said to have been the representative of British interests in this country; but I have never descended to court popularity, by pandering to prejudice, and doing wrong to anyone. I have, on the other hand, afforded every assistance to all who required it, and which religion and humanity dictated; and this community can say if I did so or not. My language to all who spoke to me on the subject of politics, was that situated as we were we ought to say nothing about the boundary question, as that was an affair of the Government; but to live as Christians in peace and concord, and in acting as I did I consider that I have rendered services to the British and American Governments. But if I had acted differently, the Government would have had difficulties, and this community would perhaps not have enjoyed the peace it has, nor be in so prosperous a condition as it is, and certainly there is not a man in it who will say that I have sought to prevent its settlement. There are, in this Valley, very many persons, and especially among the earliest immigrants, of the first years of the settlement of the country, who are sufficiently honest to admit that the country could never have been colonized as easily as it was, but for the timely, ample, and continuous assistance rendered by me, to them, with the means of the Hudson's Bay Company under my charge. Provisions were sent to meet the immigrants—boats were dispatched to convey them down the Columbia,—when arrived on their claims, cattle were loaned them—they were supplied with clothing, food, farming utensils, and wheat for seed. Very many of these men honorably paid, as soon as they could; others, though able to pay, and though their notes have been standing for many years, testify their sense of the number and magnitude of my favors by signing a secret Memorial to the Congress of the United States, to take from me my property, and to leave me in the decline of life, and in the decrepitude of old age, to the companionship of adders, who—when they were benumbed with frost, I gathered from the hedges and warmed into life, to feel, when alas! too late, the stings of their ingratitude.

"For additional proof, in repelling these calumnies, I could refer to many sources: Wilkes' Journal, Fremont's Narrative, to American travelers and writers, and to letters from many and many an immigrant to this country, and now residents in this valley, stating to their friends in the States the kindness I had shewn them, and who, I am sure, would acknowledge it, and are as much surprised at the charge brought against me as I am myself. But, moreover, it is well known that the fact of my having aided in the settlement of this country has been a subject of serious complaints, and grave charges made against me, by subjects of Her Britannic Majesty, during the pending of the boundary question—who seem to have been imbued with the same kind disposition toward their fellow men as Mr. Thurston.

"Mr. Thurston says, 'In 1845 he [Dr. McLoughlin] sent an express to Fort Hall, eight hundred miles, to warn the immigration that if they attempted to come to the Willamette, they would be all cut off.' This is a calumny as gratuitous as it is unprovoked; but it is with mingled emotions of astonishment and indignation that I have accidentally become acquainted with the contents of another document, entitled a 'Letter of the Delegate from Oregon to the members of the House of Representatives, in behalf of his constituents touching the Oregon Land Bill.' On the back of the only copy sent, is written in the handwriting of Mr. Thurston—'Keep this still till next mail, when I shall send them generally. The debate on the California Bill closes next Tuesday, when I hope to get it and passed—my land bill; keep dark till next mail.

"'Thurston.'"

"'June 9, 1850.'"

"In the paragraph already quoted from the Globe of June 30, Mr. Thurston affirms that I am a more dangerous man than Benedict Arnold was; because, as he states, I am more 'Jesuitical.' Webster, the celebrated American Lexicographer, defines Jesuitism thus: 'Cunning, deceit, prevarication, deceptive practices'—yet this same man, Mr. Thurston, who bestows epithets upon me without stint and beyond measure; who accuses me of being 'Jesuitical,' and who occupies the situation of a grave legislator, admits that his measures will not bear the light of truth, and he requires his friend to keep still, until he shall complete the perpetration of a deed of wickedness. Is this not the cunning of the fox? who prowls around in the darkness, that he may rob the hen-roost of the farmer while he is sleeping, without a suspicion of a meditated evil. Is not the sending of such a document, with the request written upon it to keep 'dark,' a deceptive practice, within the very letter and meaning of Webster's definition of Jesuitism? Mr. Thurston, it appears, was afraid of the light of facts, which he did not desire to have communicated to the Government at Washington, before he completed an act of contemplated wrong doing.

"In the letter referred to, speaking of Oregon City, he says, 'The Methodist Mission first took the claim with the view of establishing here their Mills and Mission—they were forced to leave it under the fear of having the savages of Oregon let loose upon them.' This charge is likewise without a fraction of truth, as a few facts will demonstrate. In 1829, I commenced making preparations at the falls of the Willamette, for building a sawmill. I had a party residing there during the winter of 1829 and 1830. This party, in my employment, and paid with my money, built three houses, and prepared the timber for the erection of a mill. Circumstances rendered the suspension of the mill for a while necessary. In the spring of 1830 I commenced cultivating the ground at the Falls. In the year 1832 I had a mill race blasted out of the rocks, from near the head of the island which Mr. Thurston calls Abernethy Island—but Mr. Thurston found it convenient to conceal from the United States Government that Mr. Abernethy and others purchased the island from F. Hathaway, who jumped the island in the first instance, and that Judge Bryant and Gov. Lane finally purchased whatever right Mr. Abernethy had acquired. The Indians having burnt in 1829 the timber which during that same year had been prepared for the erection of the mill, I had, in the summer of 1838, another house built at the Falls; during the same year I had squared timber prepared and hauled to the place at which I had originally proposed to erect a mill; the erection of the mill was again postponed. In 1840 the Rev. Jason Lee, superintendent of the Methodist Mission in Oregon, applied to me for the loan of some of the above mentioned timber, for the purpose of erecting a Mission building. To this request I assented, and at the same time sent Dr. F. W. Tolmie to point out to the Rev. Mr. Lee the spot upon which he might build. Up to this time, it should be observed that no effort had been made to interfere with my claim, and no one called in question my perfect right to make it. It should be borne in mind, too, that I commenced improving in 1829, and that the missionaries did not come here till 1834. To prevent, however, any future misunderstanding, growing out of any occupancy of sufferance, I handed Mr. Lee a letter, dated Vancouver, 21st July, 1840, in which I described the extent of my claim, as embracing 'the upper end of the Falls, across to the Clackamas Falls, in the Willamette, including the whole point of land and the small Island in the falls, on which the portage is made and which I intend to claim when the boundary line is drawn.' The words italicised are not so in the original. I now do this to call attention to them. Up to this time no one but myself claimed the island. Mr. Lee promised to return the timber he procured to erect the building, with the wood thus loaned Mr. Waller and family, who were placed in it by Mr. Lee. I gave Mr. Lee permission to occupy, as a mission store room, a house I had got erected for myself. Up to 1841 my claim to the island had never been interfered with; in this year Mr. Felix Hathaway put some logs on the island. I gave him notice of my claim, and erected a small house upon the island. Hathaway finally proceeded with his building. I did not forcibly eject him because I wished to preserve the peace of the country. In the autumn of 1842, I first heard that the Rev. Mr. Waller, as I was informed, set up a claim in conflict with mine, (not for the Mission, but in his own name.) I subsequently bought off Mr. Waller, in the same anxious desire to preserve the peace.

"In conclusion of this part of the subject I will remark that when Mr. Waller requested Capt. W. K. Kilbourn, who resides in this place, to assist him in putting up the logs which I had loaned to Mr. Lee, Capt. Kilbourn said to him: 'I will not assist to build the house, if you intend to set up any claim here.' Mr. Waller disavowed any such intention.

"In 1842 I had the claim surveyed by Mr. Hudspath, and laid off some lots; in the fall of 1843, there being better instruments in the country, I had my claim surveyed by Jesse Applegate, Esq., who more accurately marked its streets, alleys, lots, etc., etc. When the Oregon Provisional Government was formed, I recorded my claim in accordance with the provisions of its organic laws; this record covers the island and the site of Oregon City. In making this record, I circumscribed the limits of my claim, so that instead of extending down to the Clackamas River, as I had made it previous to there being any government in the country, I made it so as to extend only about half way down. This I did because the Organic Law provided that no one should hold more than six hundred and forty acres. This I did also for the sake of peace, notwithstanding Mr. Thurston is not ashamed to more than intimate a disposition to 'let loose upon them savages of Oregon.' Mr. Thurston says, 'He has held it by violence and dint of threats up to this time.'—That I have held my claim or any part of it by violence or threats, no man will assert, and far less will one be found to swear so, who will be believed on his oath, in a court of justice. I have probably no other enemy than Mr. Thurston, so lost to the suggestions of conscience as to make a statement so much at variance with my whole character.

"He says that I have realized, up to the 4th of March, 1849, $200,000 from the sale of lots; this is also wholly untrue. I have given away lots to the Methodists, Catholics, Presbyterians, Congregationalists, and Baptists. I have given 8 lots to a Roman Catholic Nunnery, 8 lots to the Clackamas Female Protestant Seminary, incorporated by the Oregon Legislature. The Trustees are all Protestants, although it is well known I am a Roman Catholic. In short, in one way and another I have donated to the county, to schools, to churches, and private individuals, more than three hundred town lots, and I never realized in cash $20,000, from all the original sales I have made. He continues, 'He is still an Englishman, still connected with the Hudson's Bay Company, and refuses to file his intentions to become an American citizen.' If I was an Englishman, I know no reason why I should not acknowledge it; but I am a Canadian by birth, and an Irishman by descent. I am neither ashamed of my birth-place or lineage—but it has always appeared to me that a man who can only boast of his country has little to be proud of:

"'A wit's a feather, a chief, a rod— An honest man's the noblest work of God.'"

"I was a Chief Factor in the Hudson's Bay Company's service, and by the rules of the Company, enjoy a retired interest, as a matter of right.—Capt. McNeil, a native born citizen of the United States of America, holds the same rank as I held in the Hudson's Bay Company service. He never was required to become a British subject; he will be entitled, by the laws of the Company, to the same retired interest, no matter to what country he may owe allegiance.

"I declared my intention to become an American citizen on the 30th May, 1849, as any one may see who will examine the records of the court, in this place. Mr. Thurston knew this fact—he asked me for my vote and influence. Why did he ask me for my vote if I had not one to give? I voted and voted against him, as he well knew, and as he seems well to remember. But he proceeds to refer to Judge Bryant for the truth of his statement, in which he affirms that I assigned to Judge Bryant, as a reason why I still refuse to declare my intention to become an American citizen, that I cannot do it without prejudicing my standing in England. I am astonished how the Supreme judge could have made such a statement! as he had a letter from me pointing out my intention of becoming an American citizen. The cause, which led to my writing this letter, is that the island, called Abernethy's Island by Mr. Thurston, and which he proposes to donate to Mr. Abernethy, his heirs and assigns, is the same island which Mr. Hathaway and others jumped in 1841, and formed themselves into a joint stock company, and erected a saw and grist mill on it, as already stated. From a desire to preserve peace in the country, I deferred bringing the case to trial, till the government extended its jurisdiction over the country; but when it had done so, a few days after the arrival of Judge Bryant and before the courts were organized, Judge Bryant bought the island of George Abernethy, Esq., who had bought the stock of the other associates, and as the Island was in Judge Bryant's district, and as there was only two judges in the Territory, I thought I could not at the time bring the case to a satisfactory decision. I therefore deferred bringing the case forward to a time when the bench would be full. In July or August, 1849, Gov. Lane told me Judge Bryant would speak to me in regard to my claim on the Island; the Judge did so and asked me to state the extent of my claim. To avoid mistakes and misunderstandings, to which verbal communications are subject, I told him I would write him, and accordingly addressed him the following letter:

"Oregon City, 21st Aug. 1849."

"To the Hon. W. P. Bryant: "Sir—

"I hasten to comply with your request, 'that I state the extent of my claim to the Island within ten days,' and I beg to refer you to the books of recorded land claims, kept by Theo. McGruder, Esq., for the extent of my claim; and I shall expect a transfer of the fee simple of the whole ground, with all and every privilege from the United States of America, as soon as it shall meet the pleasure of my adopted government to act in the matter.

"I have the honor to be

"Your obedient humble servant,

[Signed] "John McLoughlin."

"This letter was handed to Judge Bryant by J. D. Holman, Esq., and it seems quite incomprehensible to me, how, after receiving and perusing this letter, Judge Bryant could corroborate (if he did so) Mr. Thurston's statement, that I had declined to file my intention to become an American citizen. I filed my intention on the 30th May. Mr. Thurston left this (Territory) in August, and Judge Bryant in October. Is it probable! nay, is it possible! in so small a place as Oregon City, where every little occurrence is so soon known—where the right of voting is so scrutinized—that I should have voted, and against Mr. Thurston, and that his partisans and supporters did not inform him of it, or that Judge Bryant did not know that I had filed my intention to become an American citizen? But Mr. Thurston makes another statement in which there is not more truth. He says, 'Last summer he,' meaning myself, 'informed the writer of this that whatever was made out of the claim was to go to the common fund of the Hudson's Bay Company, of which he and other stockholders would share in proportion to their stock; in other words, that he was holding this claim in trust for the Hudson's Bay Company.'

"Mr. Thurston had just before said that I had made for myself $200,000 from the sale of lots; but now after having made my conservative purse vastly capacious finds it convenient to shrivel it up by transferring this cheering amount of coin to the coffers of the Hudson's Bay Company. I assert I never made such a statement to Mr. Thurston, and I assert that I hold my claim for myself alone, and that the Hudson's Bay Company, nor no other person or persons, hold or have any interest in it with me.

"Mr. Thurston says that on the 4th March, 1849, Governor Lane apprised Dr. McLoughlin and all others that no one had a right to sell or meddle with government lands. This is given as a reason why every man that has bought a lot since that time shall lose it. If by this statement anything more is meant than at that date the Territorial government was put in operation, then it is wholly untrue; but were it otherwise, what is the motive for the commission of such an act of injustice that necessarily involves in pecuniary loss half the inhabitants of this place, in addition to many who do not reside here? Mr. Thurston says, Abernethy's Island is in the middle of the river. Such a statement could only be made to persons unacquainted with this place, and conveys a wrong impression, as every one who knows the place will admit the island is not in the middle of the river, but separated from the main land only by a chasm over which there is a bridge about 100 feet long. In the dry season, the stream is not more than forty feet broad at the Falls, which separates it from the main land, and can the people of Oregon City and its vicinity believe Mr. Thurston did not know, some months before he left this, that Mr. Abernethy had sold his rights, whatever they were, to Judge Bryant, and therefore proposing to Congress to donate this Island to Mr. Abernethy, his heirs and assigns, was, in fact, proposing to donate it to Judge Bryant, his heirs and assigns.

"Jno. McLoughlin."

"[At the request of Dr. McLoughlin, we stepped into the Clerk's office and read upon a paper filed in the office that on the 30th day of May, 1849, John McLoughlin filed his intention to become an American citizen, and that the said paper was duly certified to, by the then acting Clerk, Geo. L. Curry.—Ed.]"

DOCUMENT M

Letter by William J. Berry, published in the "Oregon Spectator," December 26, 1850.

"Forest Creek, Polk Co., December 15, 1850."

"Mr. Editor:

"Truth crush'd to earth, shall rise again: The eternal years of God are hers; But error, wounded, withers with pain, And dies among his worshippers."

"Believing that the characters of public men are public property, I desire, with your permission, to speak through the columns of the 'Spectator' about some of the doings of our Delegate in Congress.

"I am dissatisfied with his course in regard to the 'Oregon City Claim.' And now permit me to say, that I am not influenced in this matter by mercenary motives of any kind. I never owned any property in or about Oregon City, nor do I ever expect to; but I am influenced by motives of a certain kind, which are: the veneration I feel for the sacred principles of truth and justice,—and the mortification I feel at seeing these principles not only overlooked, but indignantly trampled under foot.

"Up to the time of writing his celebrated 'letter to the members of the House of Representatives,' I, in common with a large portion of the people here, was led to admire the ability, the zeal, and industry, with which Mr. Thurston conducted the business of this Territory. But in that portion of said letter, where he speaks of the Oregon City claim, I think he has placed himself in the position of the old cow, who, after giving a fine pail of milk, kicked it all over. With the disposal of said claim as contemplated in the bill, I have no fault to find; but with the means employed by Mr. Thurston to effect that end, I do find most serious fault.

"Some of these I will notice. Speaking of Dr. McLoughlin, he says: 'He still refuses to file his intentions to become an American citizen.' Now, I assert that Mr. Thurston knew, previous to the election, that Dr. McLoughlin had filed his intentions. I heard him say in a stump speech, at the City Hotel, that he expected his (the Doctor's) vote. At the election I happened to be one of the Judges; Dr. McLoughlin came up to vote; the question was asked by myself, if he had filed his intentions? The Clerk of the Court, George L. Curry, Esq., who was standing near the window, said that he had. He voted. Some time after the election, when I was holding the office of Justice of the Peace, in Oregon City, Mr. Thurston came to me, in company with a man whose name I have forgotten, having an affidavit already prepared which he wished sworn to, and subscribed by this man; which was done. Said affidavit went to state that Dr. McLoughlin had written a letter, or letters, to some French settlers north of the Columbia, directing them to oppose Thurston and vote for Lancaster, &c., &c. I merely mention this circumstance to show that Mr. Thurston knew exactly how Dr. McLoughlin stood. The assertion of Mr. Thurston that Dr. McLoughlin has 'worked diligently to break down the settlements,' is also without foundation. There are scores of persons in this valley of the early emigrants, who testify to the kindness received at the hands of Dr. McLoughlin. And many there are who would doubtless have perished had it not been for his humane attention. He helped them to descend the Columbia—fed them, clothed them; and now he is accused of 'working diligently to break down the settlements!'

"I shall notice but one more of Mr. Thurston's assertions in regard to this claim. Mr. Thurston says: 'The Methodist Mission first took this claim.' Now this is an assertion which any one who knows anything about the history of Oregon City, knows to be utterly without foundation.—On the contrary the said Methodist Mission never had a right to any part of said claim, unless jumping constitutes right.

"In what I have said about Dr. McLoughlin, I have not spoken from interested motives. I never received any favor at his hands, nor do I expect to. But I am ashamed of the course of our Delegate; I think it is unbecoming the Representative of a magnanimous people.

"What must be the feelings of Dr. McLoughlin? A man whose head is whitened by the frosts of perhaps eighty winters! Who, during that long period has been living subject to the nation under whose flag he was born. And who, at that advanced age declares his intention of becoming a citizen of our great Republic.—I say what must be his feelings? and what must be the feelings of all candid men—of all men of honor and magnanimity, who have read Mr. Thurston's letter. And yet this same Honorable (?) Delegate in his address to his constituents lectures us upon Religion and Morality.

"Very respectfully, yours,

"Wm. J. Berry."

DOCUMENT N

Excerpts from speech of Samuel R. Thurston in Congress, December 26, 1850.

December 26, 1850, Thurston attempted to answer, by a speech in Congress, Dr. McLoughlin's letter, published in the Oregon Spectator, September 12, 1850. It is a scurrilous speech. Most of its asserted statements of fact are untrue. It is too long to be set forth here in full. It will be found at pages 36 to 45 of the Appendix to volume 23 of the Congressional Globe. The italics in this Document N are those appearing in the Congressional Globe.

He first discussed the petition of the fifty-six persons who signed the petition at Oregon City, September 19, 1850, against the passage of the eleventh section of the Donation Land Bill, and attempted to show that the petition was against Dr. McLoughlin instead of being in his favor. This was pettifogging. Thurston set forth that he had not been in favor of recognizing in the bill transfers of land by Dr. McLoughlin after March 3, 1849, for the reason that "If such transfers were confirmed in general terms, up to the passage of the bill, the whole of what the Doctor claimed would be covered by fictitious transfers for his benefit." Thurston attacked J. Quinn Thornton and Aaron E. Wait, the attorneys of Dr. McLoughlin, and called them names too vile to be inserted in this address.

Referring to Dr. McLoughlin's statement in his letter that the Hudson's Bay Company's business was so managed "in all respects subservient to the best interests of the country, and the duties of religion and humanity," Thurston said: "If to make the settler pay with his life the penalty of settling where they did not want him to, or to oppress him until he was compelled to yield; if tearing down houses over families' heads, and burning them up, and leaving a poor woman in the rain, houseless and homeless; if attempting to break down all American enterprises, and to prevent the settlement of the country—if, sir, to do all these things, and many more, which are hereafter proved, then is the quotation true. If this is their religion, then have they adorned, for the last ten years, the religion they profess." These charges are maliciously false.

Thurston charged that Dr. McLoughlin was "for all practical purposes, as much in, of, and connected with the [Hudson's Bay] Company as he ever was ... yet he comes up here with a hypocritical face and pleads poverty! and says that he has picked up my people out of ditches, mud-puddles, from under the ice, and warmed them into life; which Wait and Thornton virtually testify to.... Who ever heard a Jew or a Gypsy making up a more pitiful face than this." Thurston further said that Dr. McLoughlin persuaded some of the immigrants of 1842 to go to California; that he provided outfits for them "and took notes, payable in California. And this was done for the purpose of ridding the country of these unwelcome visitors.... That the Doctor was determined to do all he could to prevent the country from finally settling up, and with this object in view, undertook to persuade our early settlers to leave." This is absolutely untrue, except the part that Dr. McLoughlin furnished said immigrants with outfits and took their notes payable in California. Most of these notes were never paid.

Thurston then proceeds to pettifog about his injunction to keep his letter to Congress about the Donation Land Bill "dark till next mail." He had to pettifog or say it was a forgery. He said he wrote this as he feared the bill "never would pass, and I dreaded the effect the news of its failure, on the first day, would have on business of the territory.... It was to avoid the general panic that I adopted this course and this is why I requested to have nothing said till the time of trial might come."[67] Thurston was compelled to admit that he knew that Dr. McLoughlin had taken the oath of allegiance to the United States prior to the election in June, 1849, but Thurston said he did not know that Dr. McLoughlin had filed his intentions to become a citizen. Thurston endeavored to justify himself by technicalities. He knew that the Circuit Courts of the Provisional Government had ceased to exist May 13, 1849, or prior thereto. It was on that day that Governor Lane assigned the Territorial judges, appointed by the President, to their respective districts. Yet Thurston asserted that "The court, or the tribunal, in which Dr. McLoughlin took his oaths was not such a court as the law requires, but was a creature of the Provisional Government." He asserted that George L. Curry, the Clerk of the court, before whom Dr. McLoughlin took the oath of allegiance and filed his intentions to become an American citizen, did it in his capacity as a clerk of a court of the Provisional Government (which was no longer in existence), instead of in the capacity of a clerk of the new Territorial court, and said that Judge Bryant informed him that this was the case.

May 30, 1849, George L. Curry, if not the de jure clerk, was the de facto and acting clerk of the Territorial District Court, before whom it was lawful and proper to take the oath of allegiance under the United States naturalization law. If, for any reason, Dr. McLoughlin did not comply technically with the law, it was nevertheless his intention to do so. He subscribed and filed two oaths on May 30, 1849. In these he swore it was his intention to become an American citizen and that "I renounce all allegiance and fidelity to any foreign Prince, Potentate, State and Sovereignty, whatsoever and particularly to Victoria, Queen of the United Kingdom of Great Britain and Ireland, and that I will support the Constitution of the United States, and the provisions of 'An Act to establish the Territorial Government of Oregon.'" Under these oaths, or one of them, Dr. McLoughlin became a citizen of the United States September 5, 1851. In admitting him to citizenship the Judge must have found that Dr. McLoughlin's original declaration was sufficient and was filed in a court of competent jurisdiction. And yet Thurston had said in his letter to the House of Representatives and in his speech of May 28, 1850, that Dr. McLoughlin "refuses to become an American citizen."

In this speech of December 26, 1850, Thurston said that if any persons in Oregon owed money to Dr. McLoughlin, he could proceed in the Courts. This is true. The difficulty was to enforce judgments. Judgments could not then or prior to that time and until long afterwards be enforced against land. An execution could only reach personal property. If a debtor did not wish to pay a debt, he could sell his crops privately in advance, or he could cover them and other personal property by chattel mortgages. Thurston as a lawyer knew the law. The law establishing the Territorial Government of Oregon provided that "all laws heretofore passed in said Territory [i.e., by the Provisional Government] making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be, null and void."

Under the Donation Land Law a settler on public land had merely a possessory right which did not ripen into a title to the land until he had "resided upon and cultivated the same for four consecutive years." It was an estate upon condition. It was not subject to execution sale. If such a sale could have been made, under a law of the Territory of Oregon, a purchaser would take nothing—not even the possessory right of a settler.[68] The settler was the only one who could complete the four years' residence and cultivation. In fact, it was a long time after the passage of the law before a land claim could be lawfully taken up. The settlers really held a kind of squatter's title until the Surveyor-General was ready to proceed or to receive applications for surveys. The first notifications were not filed until 1852. Besides, the statute of limitations, for bringing suit on these debts, did not exceed six years.

The case of McLoughlin v. Hoover, 1 Oregon Reports, 32, was decided at the December term, 1853, of the Supreme Court of the Territory of Oregon. This case shows that Dr. McLoughlin did bring a suit shortly after September 29, 1852, the exact date not being given in the decision, against John Hoover to recover from Hoover a promissory note for $560 dated October 2, 1845, and payable one year after date. Hoover pleaded the Statute of Limitations. It was held by the Supreme Court of Oregon Territory that at no time under the Provisional or Territorial governments of Oregon was the statute of limitations to recover on notes and accounts for a longer period than six years. But by reason of amendments of the law, that the statute of limitations did not run a longer period than three years succeeding the act of September 29, 1849. The full six years from the time said note became due would end October 5, 1853, counting three days of grace, but under this decision the statute of limitations had run September 29, 1852, being less than five years from the time said note became due. The statute of limitations does not extinguish a debt. It merely stops the collection of it by law.

In this speech Thurston was compelled to admit that he had no proper foundation for the statement in his letter to Congress that Dr. McLoughlin had sent word to Fort Hall to turn the immigration to California. He said in this speech that the immigrants to Oregon "at a very early period, perhaps as early as 1842 or 1843, were met with the tale that the Indians were hostile to the immigrants; that they would be cut off if they proceeded further on the Oregon trail; and that this story was told by the officer in charge of Fort Hall, as having been received from Vancouver, [the headquarters of Dr. McLoughlin] and that this same officer advised the emigrants to go to California." This statement is not borne out by the facts. That there was danger to the immigrants in coming to Oregon is shown by the intended massacre of the immigrants of 1843, as set forth in this address and in the McLoughlin Document.

Thurston, in this speech, took up the Shortess petition and read numerous parts of it. He said in reference to the phrase that the petitioners hoped that Dr. McLoughlin never would own his land claim, that that is "just what the land bill provides for." Referring to the assertion in the Shortess petition that Dr. McLoughlin "says the land is his, and every person building without his permission is held as a trespasser," Thurston said: "What do you think of this, Mr. Speaker? An Englishman holding an American citizen a trespasser for settling on American soil, where the American Government had invited him! This, sir, was before the treaty [of 1846] and before the Provisional Government was formed, and when one American citizen had as good a right to settle there as another, and all a better right than Dr. McLoughlin. Yet this barefaced Jesuit has the effrontery to pretend he did not hold that claim by dint of threats." Thurston does not explain how the American Government invited the immigrants prior to 1847 to settle in Oregon. The truth is that the American settlers who left the East prior to 1849 went on their own initiative. They were neither invited nor helped nor protected by the Government, until after the establishment of the Territorial Government in 1849. Under the Conventions of joint-occupancy Dr. McLoughlin had the same rights, up to the Treaty of 1846, as a British subject, that any citizen of the United States had—no more, no less. This, Thurston as a lawyer, knew.

After quoting further from the Shortess petition, Thurston said: "Now, Mr. Speaker, all this was before the Provisional Government was in operation—before the treaty, when no man had any right to meddle with the soil. Who can contemplate the helpless condition of these few and feeble American citizens, at that time and place, struggling for life, and for subsistence, thus kicked and buffeted round at the mercy of one of the most powerful corporations on earth, headed by a man whose intrigues must have furnished Eugene Sue with a clue to his 'Wandering Jew,'—who, I say, sir, can thus contemplate our flesh, and blood, and kindred, with their land, their houses, their all, thus posted up, and declared subject to any disposition this unfeeling man might make of them without shedding tears of pity for their distress.... Now, sir, just turn to my correspondence in letters one and two, where he tells you, if a man settled where the company did not allow him to, he paid the forfeiture with his life, or from necessity was compelled to yield. And here, again, the names of Wait and Thornton rise up before me, and while reading their laudations of McLoughlin, I can think of nothing but two Jews lauding Judas Iscariot....

"This petition is signed by many persons, many of whom I know, who are now living in Oregon. I can bear unqualified testimony to their character in society, to their honor and to their veracity. I undertake to say, that not a word is uttered in it but the truth, and it is susceptible of any reasonable proof. I know the gentleman who wrote the original, whom to know is to respect, to listen to, to believe. He is a gentleman of the highest standing in Oregon, of some twelve or fourteen years' residence, and who would be universally believed on any subject on which he would presume to speak. That gentleman informs me that every word of it is true to the letter.... If in the mouth of two or three witnesses all things are established, then surely sixty-five men are good evidence of the facts stated in the petition to which their names were attached, and, then, you and the country can judge whether this man McLoughlin, by whom all the abuses here complained of were dictated, is entitled to receive gratuities of the American Government for such rascalities, or whether the people of Oregon owe him a debt of gratitude which they refuse to pay."

Thurston set forth the letter of Dr. McLoughlin to Robert Shortess, dated at Vancouver, April 13, 1843, in which Dr. McLoughlin wrote: "I am informed that you have circulated a petition for signatures, complaining of me, and of the Hudson's Bay Company. I hope you will, in common fairness, give me a copy of the petition, with the names of those who signed it, that I may know what is said against us, and who those are who think they have cause of complaint against us." Thurston said: "The names must be given, and for what? I will not say whether as a sure guide to the tomahawk of the Indian, or as a precursor to death by combined and grinding oppression—I leave this to the witnesses who have already spoken. But could you read in the records of heaven the deeds of this power in Oregon, while you would admire the consummate skill with which they were conducted, your whole moral nature would be shocked by the baseness of the design, and the means for their accomplishment."

Thurston in this speech, without giving names, gave excerpts from a number of letters he had received, sustaining his actions against Dr. McLoughlin in the Donation Land Bill. Shameful as Thurston's actions were against Dr. McLoughlin, Thurston had reason to believe that his actions were sustained and approved by leaders and members of the party which had elected him. Those who thus abetted Thurston in his misstatements and actions against Dr. McLoughlin were as culpable as Thurston was—they became his accessories. Some of these afterwards were ashamed of their actions against Dr. McLoughlin. Their repentances, although late, are commendable.

DOCUMENT O

Correspondence of S. R. Thurston, Nathaniel J. Wyeth, Robert C. Winthrop and Dr. John McLoughlin, published in the "Oregon Spectator," April 3, 1851.

"Chicopee, Mass., Nov. 16, 1850."

"Capt. Nath. J. Wyeth:

"My Dear Sir—You will excuse me, I am sure, when I assure you I am from Oregon, and her delegate to the Congress of the United States, for addressing you for a purpose of interest to the country to which I belong.

"I desire you to give me as correct a description as you can at this late period, of the manner in which you and your party, and your enterprise in Oregon, were treated by the Hudson's Bay Company, and particularly by Doc. John McLoughlin, then its Chief Factor. This Dr. McLoughlin has, since you left the country, rendered his name odious among the people of Oregon, by his endeavors to prevent the settlement of the country, and to cripple its growth.

"Now that he wants a few favors of our Government, he pretends that he has been the long tried friend of Americans and American enterprise west of the mountains. Your early reply will be highly appreciated, both for its information, and your relation to my country.

"I am, sir, yours very truly,

"S. R. Thurston."

"Cambridge, Nov. 21, 1850."

"Hon. Sam'l R. Thurston:

"Dear Sir—Your favor of the 16th inst., was received on the 19th. The first time I visited the Columbia, in the autumn of 1832, I reached Vancouver with a disorganized party of ten persons, the remnant of twenty-four who left the States. Wholly worn out and disheartened, we were received cordially, and liberally supplied, and there the party broke up. I returned to the States in the Spring of 1833 with one man. One of the party, Mr. John Ball, remained and planted wheat on the Willamette, a little above Camp du Sable, having been supplied with seed and implements from Vancouver, then under the charge of John McLoughlin, Esq., and this gentleman I believe to have been the first American who planted wheat in Oregon. I returned to the country in the autumn of 1834, with a large party and more means, having on the way built Fort Hall, and there met a brig which I sent around the Horn. In the winter and spring of 1835, I planted wheat on the Willamette and on Wappatoo Island.

"The suffering and distressed of the early American visitors and settlers on the Columbia were always treated by Hudson's Bay Company's agents, and particularly so by John McLoughlin, Esq., with consideration and kindness, more particularly the Methodist Missionaries, whom I brought out in the autumn of 1834. He supplied them with the means of transportation, seeds, implements of agriculture and building, cattle and food for a long time.

"I sincerely regret that the gentleman, as you state, has become odious to his neighbors in his old age.

"I am your ob't serv't,

"Nath. J. Wyeth."

"Cambridge, Nov. 28, 1850."

"Hon. Robert C. Winthrop:

"Dear Sir—I have received a letter from Sam'l R. Thurston, of which the following is a portion:

"'I desire you to give me as correct a description as you can at this late period, of the manner in which you and your party, and your enterprise in Oregon, were treated by the Hudson's Bay Company west of the Rocky mountains, and particularly by Dr. John McLoughlin, then its Chief Factor. This Dr. McLoughlin has since you left the country, rendered his name odious among the people of Oregon, by his endeavors to prevent the settlement of the country and cripple its growth. Now that he wants a few favors of our Government, he pretends that he has been the long-tried friend of Americans and American enterprise west of the mountains.'

"I have written Mr. Thurston, in reply to the above extract, that myself and parties were kindly received, and were treated well in all respects by J. McLoughlin, Esq., and the officers of the Hudson's Bay Co.; but from the tenor of his letter, I have no confidence that my testimony will be presented before any committee to whom may be referred any subjects touching the interests of said John McLoughlin, Esq.

"The very honorable treatment received by me from Mr. McLoughlin during the years inclusive from 1832 to 1836, during which time there were no other Americans on the Lower Columbia, except myself and parties, calls on me to state the facts.

"The purpose of this letter is to ask the favor of you to inform me what matter is pending, in which Mr. McLoughlin's interests are involved, and before whom, and if you will present a memorial from me on the matters stated in Mr. Thurston's letter as above.

"Respectfully and truly your ob't servant,

"Nath. J. Wyeth."

"Washington, Dec. 28, 1850."

"Dear Sir—I took the earliest opportunity to enquire of Mr. Thurston what there was pending before Congress or the Executive, in which Mr. McLoughlin's character or interest were concerned. He would tell me nothing, nor am I aware of anything.

"Respectfully your ob't serv't,

"R. C. Winthrop."

"To. N. J. Wyeth, Esq."

"John McLoughlin, Esq.:

"Dear Sir—On the 19th of December, 1850, I received a letter from Sam'l R. Thurston, delegate from Oregon, of which see copy No. 1, and by same mail an Oregon newspaper containing a communication over your signature, the letter [latter], I think, addressed in your handwriting.

"From the tenor of Mr. Thurston's letter, I presumed he wanted my testimony for some purpose not friendly to yourself. I answered his letter as per copy No. 2, but doubting if my testimony, except it suited his views, would be presented, and being ignorant of his intentions, I wrote the Hon. R. C. Winthrop, late Speaker of the House of Representatives, and at present a member of the Senate of the United States, as per copy, [No. 3] and received from him a reply as per copy [No. 4].

"Should you wish such services as I can render in this part of the United States, I shall be pleased to give them in return for the many good things you did years since, and if my testimony as regards your efficient and friendly actions towards me and the other earliest Americans who settled in Oregon, will be of use in placing you before the Oregon people in the dignified position of a benefactor, it will be cheerfully rendered.

"I am, with much respect, yours truly,

"Nath. J. Wyeth."

"Mr. Thurston writes to Mr. Wyeth, 'That Dr. McLoughlin has, since you left the country, rendered his name odious to the people of Oregon.' (That I have rendered my name odious to the people of Oregon, is what I do not know.) And 'By his endeavors to prevent the settlement of the country, and to cripple its growth.' I say I never endeavored to prevent the settlement of the country, or to cripple its growth, but the reverse. If the whole country had been my own private property, I could not have exerted myself more strenuously than I did to introduce civilization, and promote its settlement. 'Now that he wants a few favors of our Government, he pretends that he has been the long tried friend of Americans and American enterprise west of the mountains.' Mr. Wyeth states how I acted towards him and his companions, the first Americans that I saw on this side of the mountains. Those that came since, know if Mr. Thurston represents my conduct correctly or not. As to my wanting a few favors, I am not aware that I asked for any favors. I was invited by the promises held out in Linn's bill, to become an American citizen of this territory. I accepted the invitation and fulfilled the obligations in good faith, and after doing more, as I believe will be admitted, to settle the country and relieve the immigrants in their distresses, than any other man in it, part of my claim, which had been jumped, Mr. Thurston, the delegate from this territory, persuades Congress to donate Judge Bryant, and the remainder is reserved. I make no comment—the act speaks for itself, but merely observe, if I had no claim to Abernethy Island, why did Mr. Thurston get Congress to interfere, and what had Judge Bryant done for the territory to entitle him to the favor of our delegate? Mr. Thurston is exerting the influence of his official situation to get Congress to depart from its usual course, and to interfere on a point in dispute, and donate that island to Abernethy, his heirs and assigns, alias Judge Bryant, his heirs and assigns.