It was in 1849 that the conspiracy against Dr. McLoughlin and his land claim began to become effective. In 1846 Governor Abernethy became the sole owner of the Oregon Milling Company and its property on Abernethy Island, Abernethy and his son claiming to own the island, which was then known as "Governor's Island," in supposed compliment to Governor Abernethy. W. P. Bryant, the first Territorial Chief-Justice of Oregon, arrived in Oregon April 9, 1849. May 29, 1849, fifty days after his arrival he purchased all said interests of Gov. Abernethy and son. Bryant gave his promissory notes to Gov. Abernethy, aggregating $30,000 in principal, as part consideration for the purchase. Bryant also bought from Gov. Abernethy, on time, wheat, flour, and staves for about $2500 and a quantity of lumber and logs, the value of which I am unable to give. Bryant's judicial district included Oregon City.[42]
In June, 1849, Samuel R. Thurston was elected Territorial Delegate to Congress from Oregon. He arrived in Oregon in the fall of 1847. He was shrewd enough to obtain the support of the Mission Party. He skillfully made his canvass largely against the Hudson's Bay Company. Having the support of the Mission Party, and many of the voters being then in the California mines, Thurston was elected. The vote was as follows: Thurston, 470; Columbus Lancaster, 321; J. W. Nesmith, 106; Joseph L. Meek, 40; and J. S. Griffin, 8. The most important measure for Oregon was the passage of a land law, for no person had or could then obtain a legal title to land. It was all owned by the United States except the small portions granted to the Missions. Thurston used his best endeavors to obtain the passage of such a bill. But he was anxious for re-election and to ingratiate himself with the Mission Party and the conspirators against Dr. McLoughlin.
Thurston's Letter to Congress.
Thurston prepared the way, by a letter addressed to the members of the House of Representatives, for introducing into the land bill a section depriving Dr. McLoughlin of his Oregon City claim. This letter contains many false statements. This section is section eleven of the Donation Land Law, which was passed without opposition. To this section I shall presently refer.
This letter to the members of the House of Representatives was issued by Thurston at Washington, D. C., in the month of May or the early part of June, 1850. Said letter was published in full in the Oregon Spectator of September 12, 1850. Nothing was known in Oregon or California of this letter until late in August or early in September, 1850. As this letter is quite long and relates mostly to the general features of the Oregon Donation Land Bill and the necessity of its passage, I have omitted all that part of the letter excepting Thurston's discussion of the eleventh section of that bill, which contains all that part of the letter referring to Dr. McLoughlin and his land claim. In that part of his letter Thurston said:
"I will next call your attention to the eleventh section of the bill, reserving the town site of Oregon City, known as the 'Oregon City Claim.' The capital of our Territory is located here (Oregon City) and here is the county seat of Clackamas County. It is unquestionably the finest water power in the known world; and as it is now, so will remain, the great inland business point for the Territory. This claim has been wrongfully wrested by Dr. McLoughlin from American citizens. 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; and, successively, a number of citizens of our Country have been driven from it, while Dr. McLoughlin was yet at the head of the Hudson's Bay Company, west of the Rocky Mountains. Having at his command the Indians of the country, he has held it by violence and dint of threats up to this time. He had sold lots up to the 4th of March, 1849, worth $200,000. He also has upon it a flouring mill, graineries, two double sawmills, a large number of houses, stores, and other buildings, to which he may be entitled by virtue of his possessory rights, under the treaty of 1846. For only a part of these improvements which he may thus hold, he has been urged during the past year to take $250,000. He will already have made a half million out of that claim. He is still an Englishman, still connected in interest with the Hudson's Bay Company, and still refuses to file his intentions to become an American citizen, and assigns as a reason to the Supreme Judge of the Territory, that he cannot do it without prejudicing his standing in England. Last summer, he informed the writer of this, that whatever was made out of this claim was to go into 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 the claim for the benefit of the Company. Now, the bill proposes to reserve this claim; subject to whatever right he may have to it, or any part of it, by virtue of the treaty; and confirms the title of all lots sold or donated by him previous to March 4th, 1849. This is designed to prevent litigation. That day is fixed on, because, on that day, in Oregon City, Governor Lane took possession of the Territory, declaring the laws of the United States in force, and apprising Dr. McLoughlin and all others, that no one had a right to sell or meddle with the Government lands. Dr. McLoughlin ought to have been made to pay back the $200,000, but not wishing to create any litigation, the committee concluded to quiet the whole matter by confirming the lots. Having in this way made $200,000, and his possessory rights, if it shall turn out that he lawfully acquired any, being worth $200,000 more, the people of Oregon think our bounty is sufficient to this man, who has worked diligently to break down the settlements ever since they commenced; and they ask you to save their capital, their county seat, and the balance of that noble water power from the grasp of this British propagandist, and bestow it on the young American generation in Oregon, in the shape of education, upon which you and the whole Country are to rely and to defend and protect the western outposts of this glorious Union. The children of my Country are looking up to you with countenances flashing eloquence, clamoring to be educated, and asking you, in simple but feeling language, where your charity begins. They call you 'fathers,' and ask you whether you will put the moral weapons of defence in your children's hands in the shape of education, or whether you will deny it to them, and put means into the hands of him who will turn and rend both you and them. They do not doubt your decision, nor do I.
"When the Methodist Missionaries were driven from this claim, they went on the island in the middle of the river, and constructed mills and made other improvements. This island is known as the Abernethy Island, and is of no value, except for the improvements upon it. It consists of about two acres of barren rock. This island was subsequently sold to George Abernethy, and the bill ought to confirm the same to Abernethy or his assigns.—This is a simple act of justice to American citizens, who now have their mills and property staked on those rocks, and which, for a long time, stood the only mills in the valley, where an American could get any grain ground for toll. They are now, with the exception of Dr. McLoughlin's mills, nearly the only mills in the whole country left standing by the late freshet, and they have been very materially injured. They must be repaired at vast expense, and if they are not, Dr. McLoughlin will hold, as he has heretofore held, the bread of the people of the Territory in his own fist. Your brethren ask you to confirm their title to those rocks, that their property may stand there in safety. They doubt not your decision. Hence there should be an amendment in the bill to this effect."
It is not true, as asserted by Thurston, that the Methodist Mission first took the "Oregon City claim." It was first taken by Dr. McLoughlin, as I have shown. If the Methodist Mission ever took, or had any interest in this land claim, it was through a secret agreement or understanding with Waller, or with the Oregon Milling Company, excepting only the lots given to the Mission by Dr. McLoughlin in 1840 and those secured by the Mission under the Articles of Agreement, dated April 4, 1844.[43] Most of the statements, in the parts of this letter just quoted, Thurston knew were false.
Thurston also succeeded in having a proviso added to the fourth section of the bill, skillfully worded, which forbade anyone claiming under the Donation Land Law to claim both under that law and under the treaty of 1846, that treaty providing that possessory rights of British subjects should be respected. As Dr. McLoughlin had declared, in 1849, his intentions to become a citizen and renounced his allegiance to Great Britain, he probably was no longer qualified to claim under the treaty. But even if he could have claimed under the treaty of 1846, as a British subject, that would not have given him a right to obtain title to his land claim under that treaty. It was afterwards held by the Supreme Court of Oregon, in the case of Cowenia v. Hannah, 3 Oregon, 465, and by Judge M. P. Deady, sitting as United States Circuit Judge, in the case of Town v. De Haven, 5 Sawyer, 146, that the stipulation in the treaty of 1846 that the United States would respect the possessory rights of British subjects, was merely a recognition of such possessory rights and conferred no right to, or in the land, and that no means were provided by the Donation Land Law, or otherwise, to obtain title or a patent, but a British subject might have a claim against the United States for compensation; that a claim to land, under the treaty, was to be excluded from any rights under the Donation Land Law, and a claim to land, under that law, was a surrender of possessory rights under the treaty. Unquestionably the Supreme Court of Oregon and Judge Deady were right in their construction of the law, as they found it, as applicable to the points involved in those cases.