Dr. John McLoughlin, the Father of Oregon

by Frederick V. Holman

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.