"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
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;