Chapter VII: Part 7

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 preemption 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 MCLOUGHLIN" { }
"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.