Part 14

"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 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.