We, the undersigned, do hereby acknowledge the above to be a true and correct copy of the original.
R. Shortess.
A. E. Wilson.
Our history would not be complete without these documents. It will be noticed in Mr. Pomeroy’s deed, as also all the other deeds given by Dr. McLaughlin, that he “warrants and defends” against all lawful claims of all persons whomsoever, the claims of the government only excepted. He would not insert United States government, for he expected the English would get the country. He asserts in his deeds, “And I, the said McLaughlin, for myself, do vouch and declare that I am the true and proper claimant of, and to the said premises and lot of land, and that I have in myself full power and good right.”
Any one questioning his power and authority was made to feel it in a manner more severe than that of any governor of a State or of the President of the United States.
It was unfortunate that, at the time Dr. McLaughlin was making his claim to the land and his improvements at Oregon City, it was not known that he had, or would, sever his connection with the Hudson’s Bay Company, and become an American citizen, as he afterward did. It was his connection with, and apparent control over, the affairs of the company, that created the strong American prejudice against him, and deceived many as to his intentions, besides giving occasion for a strong feeling in favor of Rev. Mr. Waller, who employed a Mr. John Ricord to prepare a declaration setting forth his claim to that location, as follows:—
“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 side of the Wallamet River, sometimes called the Wallamet Falls settlement, and sometimes Oregon City, I consider it a duty to my client and to 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, nor his intentions misunderstood and misrepresented.
“The public are already aware that my client commenced the occupancy of this 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 house, moved his family into it, and cleared and fenced a good portion of the land; from which, in the ensuing years A. D. 1841 and 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 Dr. John McLaughlin 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 Dr. McLaughlin. 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 Dr. McLaughlin 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 pre-emptive 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 as much water as may be necessary for the use of said mills.
“‘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. McLaughlin, dated November 10, 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 pre-emption. 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 and 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. A. F. 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 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 to cultivate his farm is not his fault, since it was wrested from him.
“The illegality of Dr. McLaughlin’s claim rests upon the following grounds:—
“1st. He was 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 pre-emption to lands in the United States.
“2d. He is chief officer of a foreign corporative monopoly. For this reason alone he could not acquire pre-emption 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 bank 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 Dr. McLaughlin only lends his name; well knowing that a corporation, even though it be an American one, can not acquire a pre-emption. 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 pretensions of Dr. McLaughlin 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 occupation into an exclusive occupancy by British subjects.
“6th. The treaty of joint occupation (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 pre-emption is peculiar to citizens.
“These, 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. McLaughlin, 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 warrantee 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 a 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 Cowan’s Digest—Assumpsit, B).
“I am of opinion that Mr. Waller has rights in the premises, which neither Dr. McLaughlin, 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,
“Counselor in the Supreme Court of the United States,
and attorney for Alvin F. Waller.“Dated December 20, 1843.”
CHAPTER XXXIX.
Extracts from Mr. Hines’ history.—Attempt to capture an Indian horse-thief.—Dr. McLaughlin refuses to sell supplies to the signers of the petition.—Excitement in the settlement.—Interview with Dr. McLaughlin at Vancouver.