# History of Oregon (Bancroft)/Volume 1/Chapter 18

CHAPTER XVIII.
AMENDMENT OF THE ORGANIC LAWS.
1845.
From the adjournment of the legislative committee December 24th to the election of 1845. the political situation of the country in reference to boundary was earnestly discussed by the leading men of both nationalities in Oregon, with a candor, courtesy, and dignity born of the greatness of the question, and with the desire to avoid the collisions threatened by the turbulent few. This mutual endeavor to understand each other could not but tend to produce salutary results, removing prejudices due to birth and education, and replacing them by personal esteem and private friendships.
Among themselves, the Americans had other issues to consider. It is worthy of remark that the first three legislative bodies of Oregon made and adopted three different forms of republican government, without any disturbances that affected the public peace. The first framed a set of organic laws, intended to bind the people together, and to secure benefits to themselves by giving them a quasi title to selected tracts of land. This organization may be styled the ​missionary republic. Before its laws, which were voted upon by the organizers, who called themselves the people, although they represented no more than a majority of two over those who did not desire a code, could have a trial, there appeared in the country an overwhelming number of bold, free, independent men, who acknowledged no authority, either commercial or religious, who found the missionary republic too contracted to suit their views, and who proposed, if they were to live under its laws, to modify them according to their requirements. Hence a legislative committee without a missionary in it, and only two of the old colonists. I have shown how they, while greatly improving upon the legislation of their predecessors, leaned toward an independent republic, by neglecting to submit their code to the vote of the people, and by attempting to secure a call for a constitutional convention. Against such a tendency the patriotism of the western men rebelled.
Meetings were held in. the most populous districts, from which delegates were chosen to a convention appointed to meet at Champoeg April 8, 1845, for the choice of candidates for governor, supreme judge, and other officers. One good effect of the code of 1844 was, that it had driven the Canadians to unite with the Americans in the government organization, as unless they did so their lands could not be protected. It was therefore at the house of a French settler that the convention of delegates met.
Although there were but two prominent parties, the American and the independent, the latter including the Canadians and those who desired a constitution, there were four candidates, A. L. Lovejoy, George Abernethy, Osborne Russell, and W. J. Bailey. Lovejoy and Russell represented the two parties before mentioned, and Abernethy the Mission. ​Bailey, who was known to lean toward independence, yet was also of the old missionary fraternity, belonged to no particular party. In convention Lovejoy received the greater number of votes, the Americans being in the majority. But before the election, the independents, having no hope of securing their choice, and not liking to see Lovejoy elected, went over to Abernethy, who thus became governor, although at the time he was on a visit to the Sandwich Islands.
One of the principles of the American party was that the organic law of 1843 was the law of the country until the people had voted upon the amendments of 1844; because, as they contended, the people had not yet resigned the law-making power. This opposition strengthened the independents somewhat, who could find many who favored the new code. But when it came to the election of the legislature, it was found that no known independents were invested with legislative power. That there were many who favored the call for a convention was proven by the fact that the majority against it was only ninety-three, or about two to one, according to the voting census of 1844.
The legislators elect from Champoeg County were Robert Newell, J. M. Garrison, M. G. Foisy, Barton Lee; from Clackamas County, H. A. G. Lee, William H. Gray, Hiram Straight; from Tualatin County, M. ​McCarver, Isaac W. Smith, David Hill; from Yamhill County, Jesse Applegate, Abijab Hendricks; from Clatsop County, John McClure. They met at Oregon City June 24th, and organized at the house of John E. Long; but were offered the use of the room of the Multnomah circulating library for the session, which they accepted. The oath which was administered to the members was framed by Jesse Applegate as follows: "I do solemnly swear that I will support the organic laws of the provisional government of Oregon, so far as they are consistent with my duties as a citizen of the United States or a subject of Great Britain, and faithfully demean myself in office; so help me God;" the clause "or a subject of Great Britain" being introduced to enable the Canadians and others to join in supporting the laws. This clause gave offence to some Americans, who, now that their countrymen outnumbered the British so greatly in Oregon, would have preferred excluding the latter; but there were wiser heads than theirs among the more recent colonists.
McCarver being elected speaker, the message of P. G. Stewart of the executive committee was read, Abernethy being still absent. It contained little besides assurances of the favorable condition of agriculture, the peaceful condition of the country, the inadequacy of the revenue, the need of a revision of the organic and land law in favor of mechanics, and an expression of "regret that sectional and national prejudices should exist to such an extent as to endanger our unanimity;" with the hope that there was sufficient virtue and intelligence in the colony to secure ​the administration of the laws of the provisional government.
The legislature of 1845 held that they were not a constitutional body, because the law under which they were elected lacked the expressed approbation of the people, and that their first duty was to appeal to the people as to the only power with authority to change the fundamental law. That part of the executive message relating to a revision of the organic and other laws, having been referred to a committee composed of H. A. G. Lee, Newell, Applegate, Smith, and McClure, their revision was immediately begun. On the 5th of July the committee made their final report. The leading spirit in the legislature of 1845 was undoubtedly Mr Applegate. The Spartan simplicity and fidelity to trust which distinguished him among his fellow-colonists is stamped upon their proceedings. His literary style, unequalled by that of any of his contemporaries, is easily recognized in the revised code. Concerning the work of the committee, he says that it was their object to introduce as few changes as possible in the original organic laws, except the oath of office, and an amendment to the land law allowing two or more otherwise legal claimants to hold a section each without making improvements upon each claim.
While it is evident that Applegate endeavored to leave untouched the work of his friend Shortess as far as was consistent with expediency and propriety, and while avoiding any perversion of the intention of the organic laws, the amendments made to that instrument fulfilled practically all the purposes of the more elaborate legislation of 1844. Nor could this be accomplished without excluding from them ​those mere statutory sections which had given the instrument so heterogeneous an appearance to the critical eyes of Burnett and Lovejoy. To the first article of the original organic laws was added a section concerning rights, and another section concerning the powers of three distinct branches of the government.
The second article defined, in eleven sections, the powers and duties of the separate branches of government. The legislative power was to be vested in a house of representatives, which should consist of not less than thirteen nor more than sixty-one members, whose numbers should not be increased more than five at any one session, to be elected at the annual election giving to each district a representation in the ratio of its population, excluding natives. The members should reside in their district, and in case of vacancy the executive should cause a new election to be held, giving at least ten days' notice. The house of representatives should have power to fix the salaries of the different officers elected under the organization, or, as it is styled in these articles, "this compact" provided that no change was made in salaries during the term of service. The house of representatives should have the sole power of impeaching, three fourths of the members concurring; and the governor and all the civil officers should be liable to impeachment for treason, bribing, or any high crime or misdemeanor in office; judgment in such cases extending no further than removal from office, and disqualification to hold any office of honor, trust, or profit under the compact; but the offender might be dealt with according to law. The house of ​representatives should have power to divide the territory into suitable districts, and apportion the representation in their own body; to pass laws for raising a revenue by levying and collecting taxes, or imposing license on merchandise, ferries, or other objects; to open roads or canals, either by imposing a tax or granting charters; to regulate the intercourse of the people with the natives; to establish post-offices and post-roads; to declare war or repel invasion; to provide for organizing, arming, and disciplining the militia and calling it forth; to pass laws to regulate the introduction, manufacture, and sale of ardent spirits; to regulate the currency and internal police; to create inferior tribunals and inferior offices not provided for by the articles of compact; and to pass such laws to promote the general welfare of the people of Oregon as were not contrary to the spirit of this instrument; all powers not expressly delegated to remain with the people.
The executive power was vested in one person elected by the qualified voters; the qualifications being the same as in the original organic laws; every white man over twenty-one years of age who had been in the territory at its organization, or every immigrant after that time who had been in it six months, being privileged to vote at the election of officers, civil or military. Time was thus allowed for the immigration of one year, arriving in the autumn, to become informed on the questions at issue and to vote at the election in June of the following year.
The powers of the executive were to fill vacancies, remit fines and forfeitures, grant pardons and reprieves, call out the military to repel invasion or suppress in​surrection, to look to the execution of the laws, and recommend others which he might deem essential, and to sign or veto the bills passed by the legislature; the house having the power by a two-thirds vote to pass a vetoed bill, the governor's objections to which were to be entered on its journal. The governor might convene the legislature on extraordinary occasions. His term of office should be for two years, or until the election and qualification of his successor; and in case of death or resignation, the secretary should fill his place. His salary was left for the legislature to fix. The article on the judiciary differed from the original, and also from the laws of 1844. Like the first, it vested the judicial power in the supreme court, and such inferior courts of law, equity, and arbitration as might from time to time be established. Unlike the second, the supreme judge was to be elected by the house of representatives for a term of four years, or until his successor was elected and qualified. Unlike the first, he should have appellate jurisdiction only; but should have a general superintending control over all inferior courts of law, with power to issue writs of habeas corpus and other original or remedial writs, and hear and determine the same. The supreme court was to have power to decide upon and annul any laws contrary to the provisions of the articles of compact, and should give an opinion when called upon by the house of representatives, concerning the validity of any pending measure. Also, the house might provide by law for the supreme court having original jurisdiction in criminal cases.
The land law, the chief object of solicitude to all, was incorporated in the organic laws, and was changed from the original in letter, if not in spirit. No distinction of color, nationality, age, or sex was made; but every person was allowed to hold six hundred and forty acres upon complying with certain conditions. The claim must be designated by natural boundaries ​or by marks at the corners and upon the lines, and be recorded within twelve months in the office of the territorial recorder, with the names of adjoining claimants in the cases of those already in possession, and within twenty days in the cases of new-comers. Permanent improvements were required to be made within six months by building or enclosing, and residence begun within a year; or in cases where not occupied, the claimant might hold by paying into the treasury five dollars annually. Non-residents should not have the benefit of the law, nor men who were obliged to absent themselves from the territory on private business beyond the period of two years.
No individual was allowed to hold more than one square mile, in a square or oblong form, nor to hold more than one claim at the same time; but partnerships not exceeding the amount of one claim to each partner might be formed by improvements made upon one, provided none of the partners held separate claims. Any person complying with the provisions of these ordinances became entitled to the same recourse against trespassers as in other cases provided by law. ^By the amended organic laws, the officers chosen at the general election on the first Tuesday in June 1845 were declared entitled to act under these laws, and their official acts, in accordance with them, were valid and legal. The house of representatives could, by a two-thirds vote, amend the organic laws, but the amendments must be made public by being read at the polls at the next general election, and two thirds of the members elected at that time must approve of them.
All the merely statutory laws were expunged from the instrument called by the committee of revision a compact instead of a constitution, a distinction with​out a difference. Yet it was a wise deference to the original founders of the government. The people were encouraged in the maintenance of republican principles, and bribed to remain firm in their allegiance to the United States, which alone of all great governments allowed such entire freedom of political sentiments.
As the legislature had decided that they were without authority to act until the people had approved of their proceedings in amending the organic laws, they prepared to adjourn until an election could be held, at which the people were to be made acquainted with, 1st, the original laws as enacted July 5, 1843; 2d, the amended laws; and 3d, a schedule declaring the governor and legislature elected in June the officers to carry the amended organic laws into effect. If the people should adopt the last two in place of the first, the legislature could then proceed to the formation of a code of statutory laws suited to the wants of the colony. As there was no printing-press in Oregon, manuscript copies of each were made for every precinct or polling-place, to be read three times to the voters.
The legislature adjourned July 5th to meet again on the 5th of August. According to Gray, many voted against the compact because it allowed the legislature to regulate the introduction, manufacture, and sale of intoxicating drink; and many because the English and French servants of the fur company were admitted to equal privileges with themselves. Notwithstanding these objections, at the special election held on the 26th of July the majority in favor of adopting the organic laws as amended, and the schedule of officers as elected the previous June, amounted to over two hundred. By this decisive act, says Mr Applegate, "both the Methodist Mission and the ​Hudson's Bay Company ceased to be political powers either to be courted or feared in the colony, and to the close of its existence the provisional government of Oregon attained all the ends of good government."
Before following the legislative body of Oregon through its law-making achievements, let us return to its first session long enough to observe the straws indicative of the political current. Harvey Clark had been chosen chaplain, but on motion of Gray the vote was reconsidered, and Father Demers and Mr Hill were chosen to officiate alternately. The action of Gray seems to have been an ill-judged attempt to conciliate the Catholics, for Demers declined, and Clark resigned after officiating for a short time.
Then came a petition from Philip Foster, who had been treasurer, reciting his grievances at being supplanted by Ermatinger, a British subject; but the legislature sustained Ermatinger. Two days before adjournment Gray offered a resolution that a committee of one from each county be appointed to report a bill for the protection of the colony, the erection of block-houses and magazines, the revision of the military law, and to make such suggestions to the house as they might deem necessary for the peace and safety of the colony. The committee was appointed, but the proceeding fell to the ground, there being no necessity for such a measure.
A resolution of Applegate's seems to be aimed at the disposition exhibited by some persons to consider the affairs of the Hudson's Bay Company as without the pale of law and justice, and to prevent abuses of the legislative power generally.
​Early in the session Gray made a motion that a committee be appointed to draught a memorial and petition to congress, setting forth the condition and wants of the country; and accordingly Gray, Applegate, H. A. G. Lee, McClure, and Hill were appointed, and a memorial prepared and adopted. There was ​considerable talent in this committee, and it was to be expected that this paper would be better in many respects than those usually issuing from backwoods legislation. And such was the case. The document, so different in matter, tone, and expression even from those which had preceded it during the reign of missionary influence, though crude, was the ​most dignified communication yet emanating from any Oregon public body. The memorial to congress was given to White to be carried to Washington, immediately upon its being signed by all the officials in the colony, together with a copy of the amended organic law. The turn which affairs had taken in Oregon, as well as in Washington where there was a new administration, had seriously damaged White's hopes of office; and no funds had been placed at his disposal with which to reimburse himself, or his creditors at Vancouver, for expenditures in the Indian service; and he determined to proceed to the national capital for an adjustment of his accounts, if not to ask to be returned to Oregon as governor, when congress should be ready to erect a territory in that quarter. White's path was by no means smooth. "Influence here is most important," he sighed. And in order to ​secure that useful commodity, as well as the more tangible one of $2,000 subscribed by citizens on condition of finding a good pass for the coming immigration, he formed the plan of exploring for a road leading from the Willamette Valley through the Cascade Mountains to the plains of eastern Oregon, which should avoid the hardships of the trail round Mount Hood and the passage down the Columbia River. On the 12th of July, accompanied by Joseph Gale, Baptiste Du Guerre, John Edmonds, Orris Brown, Moses Harris, Joseph Charles Saxton of the last immigration, and two others, he set out on an expedition along the foothills of the Cascade Range to the southern end of the Willamette Valley, finding no pass through the mountains to the east. While at the head of the valley he ascended, with Du Guerre, a prominent peak or butte in the foothills, which he named after the secretary of war, Mount Spencer.
Returning to the north along the west side of the valley, he sought to compensate himself for the disappointment by discovering a path through the Coast Range to the sea, at Yaquina Bay, after which he hastened back to Oregon City, and reported truthfully enough to the legislature, then in session, his failure and his partial success in "bringing ship navigation with all the products of the ocean within two days' drive with ox-teams of the centre of the valley," for which he received the thanks of that body, together with a resolution recommending to the favorable consideration of congress his just claims for a remuneration for the expense incurred in the expedition. The Oregon Spectator, the first newspaper published in Oregon, and owned and controlled principally by the former members of the Methodist Mission, mentions White's exploit with much favor, and says he meant to find a road into the Willamette by a route formerly travelled ​by the fur company's trappers, leading from the Malheur or Powder River across the mountains, by Mount Jefferson. Had no revelations been made subsequent to the legislative indorsement of what was supposed to be a sincere endeavor to benefit the colony, the championship of the Spectator would not be out of place.
But among the letters White carried was one by Lovejoy to the secretary of war anticipating White's success, and speaking of the discovery of a pass which was to save two or three hundred miles in distance of the worst portion of the emigrant road, besides avoiding" the dangers of the Snake and Columbia rivers, as a fact already accomplished, though the letter was written four days before the expedition started, and probably in the expectation that White would avail himself of the pass he meant to discover to shorten his own road to Washington. Instead of this, however, he was obliged to return and take the Columbia River route; but he did not feel himself bound to surrender the recommendations to the United Statesgovernment founded on his anticipated services to the coming immigration, and all subsequent ones. It began to be whispered that the expedition had been a fraudulent pretence, intended only to create a claim on the government, and the report was rife that all the testimonials secured, either from the legislature or other persons in high positions, would be used to forward his designs upon the first office in the colony.
During the month occupied in the tour of the Willamette Valley, the memorial and organic law, as first prepared and signed, had been in the possession of White, the name of Speaker McCarver not having yet been attached to the latter, because he was opposed to the adoption of the amended organic law, which supplanted the laws of the legislature of 1844, of which he was a prominent member as well as speaker. On White's return, Applegate, wishing ​to have some resolutions attached, reclaimed the documents from him, during which time McCarver clandestinely added his name as speaker of the house to the objectionable organic law.
White had no sooner started on his long-deferred journey than Barton Lee offered a resolution exposing the secret action of McCarver, disapproving it, and declaring that the house was under the humiliating necessity of signifying its displeasure to the United States government by causing the resolution to accompany the other documents. The discussion occasioned by this discovery and the explanation of McCarver ended in the house passing another resolution to despatch a messenger to Vancouver to bring back the documents in order to have McCarver's signature properly attested, and a second one that the speaker, having signed certain documents from a mistaken sense of duty, and not from contumacy or contempt, should be required to follow White to Vancouver and erase his name from the organic law and from two resolutions in favor of White. From this requirement he was, however, excused. While resolutions were in order, Applegate offered one declaring that it was not the intention of the house, in passing the above-named resolves, to recommend White to the United States government as a suitable person to fill any office in Oregon; with another that an attested copy should be forwarded to Washington. Meanwhile, the messenger who had been despatched to bring back the memorial and organic law had overtaken White's party and presented the order of the house. But unwilling to risk any changes being ​made in the resolutions, White declined to relinquish them, returning instead the following epistle:
"To the Honorable, etc.—Gentlemen: Being on my way, and having but a moment to reflect, I have been at much of a loss which of your two resolutions most to respect, or which to obey; but at length have become satisfied that the first was taken most soberly, and, as it answers my purpose best, I pledge myself to adhere strictly to that. Sincerely wishing you good luck in legislating, I am, dear sirs, very respectfully yours, E. White."
This saucy defiance of the legislative body of Oregon marked the disappearance of White from colonial politics. The resolutions last passed, declaring him not a proper person to fill any office in the country, together with the changes which had occurred in Washington, utterly defeated all aspirations in that direction,
Upon the reassembling of the legislative body, Governor Abernethy, who had but recently returned from the Hawaiian Islands, sent in his first message. It referred to the adoption of the amended organic law, and the duty of the members to make their legislation conform to it; adverted to the insufficiency of the revenue, recommended taxing farms as well as cattle and merchandise, and made some suggestions with regard to regulating the time of holding courts.
Owing to the refusal of McCarver to sign the document to be sent to Washington, there was a disposition to ignore his rights as speaker, and a ballot was taken, which resulted in eight votes for Gray and only one for McCarver. The protest of the speaker was met by a resolution by Applegate asking him to resign. Both proceedings were reconsidered the same day, and on the third McCarver, by a motion of Garrison, was restored to his office, but tendered his resignation. Gray, who desired the speakership, voted that he be allowed to resign, but the motion being ​withdrawn, at the request of Applegate, McCarver withdrew his resignation, and matters went on more smoothly.
A resolution of Applegate's, that the people of Oregon were not, in, the opinion of the house, morally or legally bound by any acts of their officers or agents not expressly sanctioned by the instrument by virtue of which they had their official existence; and further, that the house could not assume in behalf of the people the payment of any debt, or the refunding of any funds borrowed, or otherwise unlawfully contracted or obtained, without first obtaining the consent of the people—was adopted in a committee of the whole, three members, Gray, Foisy, and Straight, protesting formally on the ground that such expressions by the legislature tended to destroy the confidence of the people in their agents. Applegate, who was determined that the temporary government should not be made a burden, but a blessing to the colonists, cared little for so flimsy a protest, well knowing that the people could discern who were guarding their interests.
Ever since the departure of the United States exploring expedition, there had been a feeling of dissatisfaction in the minds of the American colonists on account of the disposition made of the Peacock's launch by Wilkes, which became stronger as the political horizon grew darker, and as the needs of the colonists for all the means of the transportation were more pressing.
McClure of Astoria offered a resolution that a committee of three should be appointed to wait on Mc​Loughlin, to ascertain whether the launch could be given up to the provisional government, provided said government became responsible for its safe keeping and delivery to the United States authorities when demanded; to which inquiry McLoughlin returned a refusal to deliver the boat without an order from Wilkes or from the government of the United States. Gray pretends that the effect of Applegate's resolution was such as to produce this refusal, by destroying the credit of the provisional government with the Hudson's Bay Company; as if the company were retaining the launch for security! Gray was not unaware when he penned this absurd statement that McLoughlin published in the fourth number of the Oregon Spectator the letter of, Lieutenant Wilkes to him, enjoining upon him to have the launch kept at Fort George, under the special care of the company, to be used for the sole purpose of affording relief or aid to all vessels requiring assistance of any kind or pilots for bringing in vessels, until called for by some person authorized by him or by the government of the United States to receive it.
As a member of the body carrying on the correspondence, Gray must have known that the answer actually returned was, that it would afford him, McLoughlin, great pleasure to meet the wishes of the Oregon government, and to give up the boat on the conditions proposed, provided the government would take the necessary measures to cause the launch to be employed only for the purpose for which it was left with him, namely, to visit vessels and afford them assistance when in distress; that he could not, consistently with his respect for the flag that covered her, consent to her being employed in any other service. But it appears from the correspondence that no such pledge as the doctor required was given, and he declined to relinquish his trust.
​At the third session of the legislature, in December, an act was passed authorizing the governor "to take charge of, refit, and employ the launch in accordance with the conditions of Lieutenant Wilkes." In compliance with these legislative proceedings, Governor Abernethy addressed a letter to McLoughlin, enclosing a copy of the act which authorized him to take possession of the launch, and to request McLoughlin to deliver to him the anchor, cables, oars, sails, and all other parts of her rigging left with him. In case of refusal to deliver up these articles, the governor was to proceed to purchase materials, and have the boat immediately put in repair "for any service the territory may require."
McLoughlin's answer to the governor was still the same, that he "could only deliver the articles belonging to the Peacock's launch on receipt of an order from the government of the United States, or from Captain Wilkes." The subject of the possession of the Peacock's boat threatened to become a serious. one. The Oregon legislature acted upon the principle that they, for the people of the colony, had a right to any United States property, on the ground of their citizenship, and jealously demanded that such property should be wrested from the hands in which it had been placed; though by doing so, not having the means to put it in repair, and employ a proper officer and seamen, it would be rendered useless in the capacity for which it was intended. The matter was finally settled by McLoughlin placing the boat in the hands of Lieutenant Howison of the United States
​navy, a few months after the passage of the act, who sold it to a Mr Shelly, for the avowed purpose of using it as a pilot-boat.
The first bill passed by the duly authorized legislature was to prevent duelling; the immediate cause for it being a quarrel between S. M. Holderness and J. G. Campbell, both estimable citizens, who could think of no other honorable way out of their difficulties than mortal combat. On hearing of this, Applegate at once introduced a bill on the subject, asked for a suspension of the rules, secured its passage, and sent it to the governor to be signed, when it became a law within thirty minutes of its inception. Under its provisions the would-be duellists were arrested and placed under bonds ta keep the peace. Early in the session a bill was passed adopting the statutes of Iowa, so far as they were 'applicable to the circumstances of the country. This tendency in each legislative body to have its enactments based upon the code of Iowa was greatly a matter of necessity, owing to a scarcity of law-books in the territory, as I have explained; but with the legislature of 1845 it was something more. Iowa was a new state and nearest to Oregon. It was a free state, which the leading men in the colony had determined Oregon should be, and had passed its minority as Oregon was doing, under the ordinance of 1787, under conditions also similar to those of Oregon; and its laws moreover were less conservative and more progressive than those of the older states.
Having adopted a code and set the committees at work adapting it to the country's needs, which they did in a measure by adopting the laws of 1844, the next movement was to restore the jurisdiction of the provisional government to the country north of the Columbia River. This was done by setting off ​the district of Vancouver, which embraced all that part of Oregon north and west of the Columbia River. But now arose the question of apportionment and other matters connected therewith; a point in legislation upon which Applegate and a few others regarded as most important, to wit: Would the officers of the Hudson's Bay Company become parties to the articles of compact by the payment of taxes, and complying with the laws of the provisional government, which only promised protection to its adherents? Should they refuse their support, they would become outlawed, and the objective point if not the prey of any turbulent spirits of the next immigration, who like Alderman might choose to settle on their lands, or like Chapman, threaten to burn Fort Vancouver.
The committee on apportionment was composed of I. W. Smith, H. A. G. Lee, B. Lee, Applegate, and McClure. Applegate proposed in a private session of the committee to get the sentiments of the Hudson's Bay Company on the question of the compact, and was deputized by them to hold a private inter​view with McLoughlin before making a formal proposition. To most of the people of Oregon the bringing the officers of the British fur company into the organization was a surprise, and the manner of it a secret. Gray, who as a member of the legislature must have known much of the inside history, dismisses the subject by attributing the concession to what he calls McLoughlin's amphibiousness. But this curt ignoring of a matter of the highest importance to the colony does not answer the purpose of history. McLoughlin has himself left on record a narrative of the circumstances, in which he says that Applegate approached him, privately, with the proposition to unite with the Americans in the government compact, and that at first he objected; but that Applegate pointed out to him the security it would offer the property of the company, and how much it would conduce to the maintenance of peace and order to have it known to the American people that the two nationalities were united in Oregon. "There will be a large immigration this year," said Applegate; "you may depend there will be many who will follow Williamson's example."
Remembering the feelings which the person urging him to the measure had once entertained, and reflecting that he had a thorough knowledge of the sentiments of his countrymen, McLoughlin deemed it prudent to yield; especially as in June he had received in answer to his call on the directors of the company in London a communication informing him that in the present state of affairs the company could not obtain protection from the government, but it must protect itself the best way it could. In the judgment of McLoughlin, the best way to protect the company's property was to accept the invitation tendered by the Americans to join in their government organization, ​and he, with Douglas, signified his consent to receive a formal proposition. A letter was then addressed to McLoughlin, and conveyed to him by Applegate.
In the consideration of the proposition made to them, there were other subjects besides that of allegiance to be duly weighed, an important one of which was the matter of taxes, the company's property being all taxable according to the laws of the organization, and being greater in value than that of all the colonists together. To avoid being made to support the Oregon government in toto, an agreement was entered into that the company should pay taxes only on the goods sold to the white inhabitants of the country; and on this understanding a letter of acceptance of their invitation was returned to the committee, and the officers of the Hudson's Bay Company became, with all the British residents, parties to the political compact of Oregon. In the election of officers, James Douglas ​was chosen district judge for three years, and Charles Forrest, superintendent of the Cowlitz farm for one year; while M. T. Simmons of Newmarket on the Sound was elected to the two years' term; and John R. Jackson was made sheriff of Vancouver district. So soon after war had seemed imminent on Oregon soil were the extremes of both parties united in a common service by the sagacity of a few men of good judgment on both sides.
Having accomplished so much, the house proceeded to elect officers for the several districts south of the Columbia. The first choice for supreme judge was Nathaniel Ford, who declined, and Peter H. Burnett was elected. For Champoeg County, E. E. Parrish, F. X. Matthieu, and Daniel Waldo were chosen in the order named to fill the three, two, and one year terms of district judges; William Morrison, sheriff. For Tualatin County, B. Q. Tucker, H. Higgins, and William Burris were chosen judges; T. Smith, sheriff. For Yamhill County, James O'Neil, J. Hembre, and Joel P. Walker, judges; and A. Hembre, sheriff. For Clackamas County, P. G. Stewart, Frederick Prigg, and F. W. Pettygrove, judges; William Holmes, sheriff. For Clatsop County, W„ T. Perry, Robert Shortess, and Calvin Tibbits, judges; Thomas Owens, sheriff. Some changes were made at the December session, Prigg being chosen in place of Stewart, resigned; C. E. Pickett in place of Prigg, and S. Whites in place of Pettygrove. For Champoeg County, W. H. Willson was chosen president of the bench; and a Mr Golding was elected a judge for Clatsop County. The governor was elected superintendent of Indian affairs; John E. Long, secretary of the territory; F. Ermatinger, treasurer: W. G. T'Vault, ​postmaster-general; and Joseph L. Meek, marshal. Thus was the machinery of a popular and efficient form of government set in motion, which joined the lion and the eagle not one moment too soon. For a few days after McLoughlin and Douglas had given their consent to the union, there arrived from Puget Sound, in company with Chief Factor Ogden, Lieutenant William Peel, third son of Sir Robert Peel, and Captain Park, of the royal marines, with a letter from Captain John Gordon, brother of the earl of Aberdeen, and commander of the British fifty-gun ship of war America, of the British squadron in the Pacific, at that time amounting to fifteen vessels, carrying over four hundred guns.
Captain Park brought also a letter from Admiral Seymour, informing McLoughlin that firm protection would be given British subjects in Oregon, and not long after, another letter from Captain Baillie of the Modeste, which had been in the Columbia the previous summer, informing him that he was sent by the admiral to afford protection to her Majesty's subjects in Oregon, if they required it.
Had these proffers of protection, which really meant war, come in the month of June instead of August, the Oregon Question would have taken a different ​turn. McLoughlin could not then have refused to have the company's property protected, especially after having expressed his fears, as he did in 1843. Nor did he refuse it now; although, as he says, he was at first inclined to do so, thinking himself safe through the organization; but Douglas suggested that it would be well to have the Modeste in the river, in view of the threatening aspect of the political horizon, and the large immigration expected in the autumn.
The discussions at Vancouver during the visit ot the British naval officers were often warm, Captain Park anxiously inquiring into the practicability of bringing troops overland from Canada, and saying that if It came to blows, "we will hit them a good deal harder than we would other people," to the distress of McLoughlin, who could only answer in astonishment and disapproval, "O Captain Park! Captain Park!"
Before returning to the sound, where the America was lying, near the lower end of Whidbey Island, Park and Peel made a brief tour of the Willamette Valley, visiting some of the principal men among the settlers, perhaps at the suggestion of the wise McLoughlin, who could foresee the effect of such contact. At the house of Applegate, who gave him an account of the emigration of 1843, Peel declared that such men as composed it must make "the best soldiers in the world," with a new comprehension of what it would be to fight them. "I told him," says Applegate, "that they were probably brave enough but would never submit to discipline as soldiers. If the president himself had started across the plains to command a company, the first time he should choose a bad camp, or in any other way offend them they would turn him out, and elect some one among themselves who should suit them better."
​I have no doubt, from the evidence, that the visit of Park and Peel, together with the act of McLoughlin in joining the compact of the provisional government, saved the country a war, and influenced the final settlement of the boundary question. When they came to Vancouver they expected to maintain England's hold of the north side of the Columbia River; but they found the Hudson's Bay Company bound in an agreement of mutual protection with the Americans; they learned the fearless and resolute character of the colonists, and their rapidly increasing numbers, and were constantly checked in their expressions of hostility by McLoughlin, who assured them, and even wrote to England, that the country "was not worth a war."
After a few weeks Park and Peel returned to join the America, which sailed for Honolulu and Valparaiso in September; the Fisgard, Captain Duntz, taking her place on the sound, and remaining some months at Nisqually; and the Modestd anchoring in front of Vancouver, about the 1st of October. Captain Gordon, after arriving on the South American coast, received such advices from England as to cause him to gather up in haste the money of the British residents, and sail away to England without waiting for orders from the admiral. In the mean time, Lieutenant Peel was beforehand with him, taking the shorter route by Vera Cruz and Habana to London, where he arrived in January 1846, as bearer of ​despatches from Admiral Seymour. It was rumored in Habana that the whole English squadron was making sail for the Columbia River; but the rumor did not, apparently, originate with Lieutenant Peel.
Before one pair of spies quitted Vancouver another arrived. On the 28th of August appeared, unannounced, at the headquarters of the fur company, Lieutenant Henry Warre of the 54th, and Lieutenant Vavasour of the royal engineers, who had left England April 5th, and crossed the continent by way of Red River, Fort Pitt, and Fort Colville. They spent their time in apparent half idleness at Vancouver, surveying a little about the mouth of the Columbia, but in reality gathering information relative to the position of affairs between the British subjects and American citizens in Oregon. That which they learned was not at all satisfactory, as it afterward appeared; and their report, though doubtless tending, like that of Peel, to influence the English government in resigning its pretensions to the territory south of the 49th parallel, was damaging in its accusations against McLoughlin, as a British subject, if not as the head of the corporation he represented in Oregon.
It was charged, mainly, that the policy pursued by the Hudson's Bay Company at the different posts in the Oregon Territory had tended to the introduction of American settlers into the country until they outnumbered the British. And to prove this position, they instanced the assistance rendered the different immigrations, one of which was arriving while they were at Vancouver. They had, it was said, sold ​goods to the American settlers at cheaper rates than to British subjects. They had suffered themselves to join the provisional organization, "without any reserve except the mere form of the oath." Theu lands had been invaded, and themselves insulted, until they required the protection of government "against the very people to the introduction of whom they have been more than accessory," and more of a like import.
The answer made by McLoughlin, while it was intended only for the eyes of the London directors, or the ministry, contains matter of much interest to the student of Oregon history. Concerning the friendship shown the missionaries, he said: "What would you have? Would you have me turn the cold shoulder to the man of God who came to do that for the Indians which the company had neglected to do?" As to the first settlers, men from the mountains and the sea^he had tried to prevent their remaining idle and becoming destitute, and therefore dangerous to the good order and safety of the company's servants. Drive them away he could not, having neither the right nor the power. To the allegation that the trading posts of the company had been used to save American immigrants from starvation and the Indians, he replied that it had long been safe for two men to travel from Fort Hall to Vancouver, or twenty men from Fort Hall eastward, and therefore that the immigrants owed it not to the trading posts that they were spared by the savages, and as to other assistance rendered in furnishing boats, and in some instances goods, the immigrants had not come to Oregon expecting a cordial reception from him, but quite the contrary; and that while he had done some things for humanity's sake, ​he had intended to and had averted evil from the company by using courtesy and kindness toward the American immigrants.
As to joining the organization, he showed that in 1843 he had written to England of the threats against Vancouver, and asked for protection, but had not received it, while the dogs of war were snarling and threatening, and the Americans outnumbered the British subjects ten to one in the settled portions of Oregon; and failing in this, had done the best thing he knew how to do for the company and humanity. He admitted that the lands of British subjects had been invaded, but proportionally in a less degree than those of the colonists by each other. "And, after all," he says, "I have found British subjects just as keen at catching at an opportunity to benefit themselves, and that in instances to my cost, as these American backwoodsmen."
To the accusation that the company had submitted to insult from the Americans, he replied: "They were not to consider themselves insulted because an ignorant man thought he had a better right to a piece of land than they had, and attempted to establish his right in the only way the law admitted." And to the taunt that having brought this state of affairs on himself, he then wanted protection, he answered that protection had been asked for British property, but more particularly for British rights, from the aggressions of a people who had been publicly encouraged by the promises of congress of donations of land—a circumstance which the British government had taken
​no notice of, further than it had of the application of the company for protection of its property. As tor the officers of the company, they required no protection, being personally as much esteemed and respected as any individuals in the country.
Having answered these several charges specifically, he summed up on the main one of being "more than accessory" to the introduction of American settlers, by saying that the company had defeated every American trader in fair opposition, while so conducting themselves that neither they nor their friends had any occasion to be ashamed of their conduct. The great influx of missionaries, whom they had no right or power to prevent coming, and the statements they circulated through the public prints, was, he said the remote cause of Linn's bill offering donations of land, concerning which the British government had seen fit to be silent, thereby itself becoming "more than accessory" to the American settlement of Oregon He repelled the assumption that it was the duty oF the company to defend England's right to territory The obligation of the company's officers, he asserted, was to do their duty to the company, whatever their feelings might be, and, minding their proper business, let the government take care of its own affairs.
He admitted helping the immigrants of 1843, 1844 and 1845 with boats to transport their families and property to the Willamette before the Columbia should be closed with ice, in which case those left behind must perish of starvation; taking the sick into the hospital at Vancouver for treatment, thereby saving several lives. And he also admitted assisting the immigrants of 1843 to put a crop in the ground both as a means for providing for their support and of saving the company from the necessity of feeding the next immigration. "If we had not done this, he declared "Vancouver would have been destroyed, and the world would have judged us treated as our inhuman conduct deserved; every officer of the com​pany, from the governor down, would have been covered with obloquy, the company's business in this department would have been ruined, and the trouble which would have arisen in consequence would have probably involved the British and American nations in war. If I have been the means," he added, "by my measures, of arresting any of these evils, I shall be amply repaid by the approbation of my conscience, and of all good men. It is true," he said, in conclusion, "that I have heard some say they would have done differently; and if my memory does not deceive me, I think I have heard Mr Vavasour say this; but as explanation might give publicity to my apprehensions and object, and destroy my measures, I was silent, in the full reliance that some day justice would be done me; and as these gentlemen were not responsible, and I was, I took the liberty of judging for myself, communicating them only to Mr Douglas under the injunction of secrecy."
The conduct of McLoughlin was discussed in the house of commons, where it was said that by some people he was called the ' father of the country,' and said to have settled it greatly at his own expense, while by others it was declared that he had discouraged settlement. In his own statement of his acts and motives the remarkable passages are those in which he confesses himself guilty of the main charge, that of sympathizing with the Americans, or with equal rights, which is the same thing. Aristocrat as he was considered by the colonists, and autocrat as he really was, for twenty years throughout the country west of the Rocky" Mountains, he still bravely returned the assaults of his enemies in the language of a republican. He defended the American charac​ter from the slurs of government spies, saying "they have the same right to come that I have to be here, touching lightly upon the ingratitude of those who forgot to pay him their just debts, and the rudeness of those whom White mentions as making him blush for American honor.
But whether he favored the company s interests against the British, or British interests against the company's, or maintained both against the American interest; or favored the American interest against either, or labored to preserve harmony between all, the suspicions of both conflicting parties fell upon him and being forced to maintain silence, he had the bad 'fortune to be pulled to pieces between them Foreseeing something of this, feeling himself spied upon by the British government, as well as by Sir George Simpson, having a large property interest south of the Columbia, and being perhaps weary of a responsibility that with increasing years became increasingly burdensome, he tendered his resignation ashead of the company in Oregon, in the autumn of 1845, and took up his residence at Oregon City in the following spring, with the intention of becoming an American citizen when the boundary question was settled, or his resignation was accepted. With the next spring came the news of the election of President Polk and the threat of war with England, causing him the greatest perplexity. Change his allegiance in time of war he could not, without forfeiting his estates in Canada, and perhaps his life as a traitor. Neither could he, in the event of war, retain his dearly held claim at .Oregon City. Then came Warre and Vavasour, as he well knew with no good intent toward him, while the political horizon grew no brighter. In his perplexity he took advice ot Burnett, then chief justice of Oregon, and Applegate, the man through whom the recent fusion of British ​and American interests in Oregon had been consummated. Applegate urged him to take the oath of allegiance to the United States, his resignation having been accepted; but Burnett objected that he had no authority from the government to administer the oath; "and to Mr Burnett's timidity," says Applegate, "was owing the doctor's subsequent troubles with individuals and the United States government." This opinion is not mine, however. The missionary party would have found that the oath was without authority, and the result would have been the same. They made war on him after he came to Oregon City. In addition, he lost heavily through the debts of the settlers, which the company put upon him, if not wholly, at least to a great amount, and was severely attacked by English writers, notably in Fitzgerald's Hudson's Bay Company.
It was fortunate that neither the dissatisfaction of the English ministry, the Hudson's Bay Company, nor the defiant tone of the American press and con​gress, could affect the status of the Oregon government, composed of individuals of both nationalities outside of the jurisdiction of either; to which fact was due the continued peace and prosperity of the colony in 1845.
* ↑ Applegate's Views, MS., 42.
* ↑ Clyman's Diary, MS., 98; McLoughlin's Private Papers, MS., 2d ser., 14.
* ↑ White says: 'Many are favorable to the adoption of a constitution. . . This being the most enlightened view, and meeting with little opposition, I am of opinion it will prevail.' Concise View, 55
* ↑ From the fact that there were no newspapers in Oregon at this time, it is difficult to get a clear return of the election, but I learn from other sources that J. W. Nesmith was elected judge, and Frank Ermatinger treasurer. Ermatinger's election was the welcoming hand to the Hudson's Bay Company.
* ↑ Mr Applegate says that Albernethy headed the American ticket called by its adversaries 'missionary.' Views of Hist., MS., 44. But I have followed Gray, who, in this instance, clearly shows the cause which defeated the candidate of the convention. Both Russell and Bailey would prefer Abernethy to one of the new and aggressive men of the immigrations, and their influence, combined with that of the Mission which also announced its candidates as American, elected him.
* ↑ Or. Archives, MS., 51.
* ↑ It will be observed that the word 'county' had been substituted for district. This usage was introduced by the committee of 1844; but the legislature of 1845 passed an act authorizing the change. Or. Laws, 1843-9, 35. In the same manner the phrase 'legislative committee' was altered to 'legislature,' though there were those who objected to both changes.
* ↑ This form of oath, Gray says, shows that Newell, Foisy, McCarver, Garrison, Smith, and Hendricks, who supported it, were 'favorable to a union with the company, or the English party in the country;' though he must have known it was intended to open the door to the fusion of the British subjects with the Americans, and to avert the troubles that threatened. See Gray's Hist. Or., 422.
* ↑ McLoughlin remarks: ' The originator of the clause is the very man who, as I am informed, proposed to the immigrants, on their way here in 1843, to take Vancouver; which is a proof how much his prejudices had died away.' Private Papers, MS., 3d ser.
* ↑ Or. Archives, MS., 51. While at Salem in 1878 I found in the statehouse a mass of loose unprinted documents, many of them of great value to history. I engaged Mr J. Henry Brown to make a thorough examination of them, comparing them with the printed archives, and to copy at his discretion. This he did with a faithfulness and discrimination worthy of the highest praise. The volume is quoted as above.
* ↑ Views of History, MS., 45.
* ↑ 'No person shall be deprived of the right of bearing arms in his own defence; no unreasonable searches or seizures shall be granted; the freedom of the press shall not be restrained; no person shall be tried twice tor the same offence; nor the people be deprived of the right of peaceably assembling and discussing any matter they may think proper, nor shall the right of petition ever be denied.' Or. Spectator, Feb. 5, 1846.
* ↑ 'The powers of the government shall be divided into three distinct departments, the legislative, executive, and judicial; and no person or persons belonging to one of these departments shall exercise any of the powers belonging to either of the others, except in cases herein directed or permitted.' Id.
* ↑ It was Applegate's idea that no power to make laws existed, only as the people delegated it; and that by the articles of compact which were agreed to by the people, only so much power as was described in the compact could be exercised. This was intended as a check on the missionary as well as the Hudson's Bay influence. No sectional ambition could be gratified so long as no authority for it was contained in the organic laws, which defined the extent of the legislative power. For this reason the land law was made organic, as well as the oath of office.
* ↑ Governor Abernethy drew no salary under the provisional government.
* ↑ After this law was approved by the people, it was amended so as to 'permit claimants to hold 600 acres in the prairie, and 40 acres in the timber, though said tracts do not join,' in an act similar to the amendatory act of 1844.
* ↑ Or. Spectator, Feb. 5, 1846; Gen. Laws Or., 58-65.
* ↑ Says Applegate: 'I was a citizen of the United States, and I intended to remain one.'
* ↑ Grover's Or. Archives, 90; Hine's Or. Hist., 432-4.
* ↑ Views of History, MS., 46.
* ↑ Grover's Or. Archives, 73-7.
* ↑ ' Resolved, that the government has no power to annul a contract entered into either in the United States or Great Britain.' Grover's Or. Archives, 78. That the legislature did not act up to the spirit of this resolution is shown by the fact that notwithstanding they disclaimed any authority to legislate before the people had given them the power by voting on the laws, three divorces were granted; two of the applicants having been married in the States. A third applicant who gave as a reason for desiring a divorce that he was not able to return to the States for his wife, was denied; it being held 'that a good wife would pay for a long journey.'
* ↑ 'To the honorable the Senate and Home of Representatives of the United States of America in Congress assembled: Your memorialists and petitioners, the representatives of the people of Oregon, for themselves, and in behalf of the citizens of the United States residing in this territory, would respectfully submit for the consideration of your honorable body some of the grievances under which we labor, and pray your favorable consideration of our petition for their remedies. Without dilating upon the great importance of this territory as an appendage to the federal union, or consuming your valuable time in repeating to you the oft-repeated account of our agricultural and commercial advantages, we would, with due deference, submit to your serious consideration our peculiar difficulties as occupants of this territory. As by treaty stipulations between the governments of the United States and Great Britain this territory has become a kind of neutral ground, in the occupancy of which the citizens of the United States and the subjects of Great Britain have equal rights, and, as your memorialists humbly conceive, ought to have equal protection: such being the facts, the population of the territory, though promiscuously interspersed, is composed of the subjects of a crown and the citizens of a republic, between whom no common bond of union exists. It may naturally be supposed that in the absence of any provision having been made by the two governments, to prevent or settle any such occurrence, that conflicting interests, aided by ancient prejudices, would speedily lead to results the most disastrous; particularly when it is considered that this mixed population exists in the midst of numerous and warlike tribes of Indians, to whom the smallest dissensions among the white inhabitants would be the signal to let loose upon their defenceless families all the horrors of savage warfare. To prevent a calamity so much to be dreaded, the well-disposed inhabitants of this territory have found it absolutely necessary to establish a provisional and temporary government, embracing all free male citizens, and whose executive, legislative, and judicial powers should be equal to all the exigencies that may arise among themselves, not provided for by the governments to which they owe allegiance; and we are most happy to inform your honorable body, that with but few individual exceptions, the utmost harmony and good-will has been the result of this, as we conceive, wise and judicious measure; and the British subjects and American citizens vie with each other in their obedience and respect to the laws, and in promoting the common good and general welfare of Oregon.   'Although such has been the result, thus far, of our temporary union of interests, though we, the citizens of the United States, have had no cause to complain either of exaction or oppression at the hands of the subjects of Great Britain, but on the contrary it is but just to say that their conduct toward us has been most friendly, liberal, and philanthropic, yet we fear a longer continuance of the present state of things is not to be expected—our temporary government being limited in its efficiency, and crippled in its powers by the paramount duty we owe to our respective governments—our revenue being inadequate to its support—and the almost total absence, apart from the Hudson's Bay Company, of the means of defence against the Indians, which recent occurrences led us to fear entertain hostile feelings towards the citizens of the United States. Your memorialists would further inform your honorable body that while the subjects of Great Britain, through the agency of the Hudson's Bay Company, are amply provided with all the munitions of war, and can afford by means of their numerous fortifications ample protection for themselves and their property, the citizens of the United States are scattered over a wide extent of territory, without a single place of refuge, and within themselves almost entirely destitute of every means of defence. Your memorialists would further crave your indulgence to remark that Great Britain has, by extending her criminal code to this country, guaranteed every British subject, claiming his birthright, a legitimate trial by the laws of his country. We, as citizens of the United States, having neither the military protection of our government, nor the extension to us of the civil laws of our country, are forced to the enactment and execution of laws not authorized, and, for what we know, never will be sanctioned, by our government. Your memorialists would further call the attention of your honorable body to the fact that, as citizens of the United States, we labor under "the greatest commercial disadvantages. We have neither ships of war nor of commerce, nor any navigation of the rivers of the interior, and for want of adequate protection, no private capitalist among us can establish a successful competition with a wealthy and powerful monopoly, possessing all the appliances of commerce, and all the influence over the natives by an early establishment among them. We are, therefore, dependent for a market for a large and increasing surplus, and for nearly all our supplies, upon a single company, which holds the market under its control.   'Your memorialists, with a view to remedy the grievances under which they labor, pray the national congress to establish a distinct territorial government, to embrace Oregon and its adjacent sea-coasts. We pray for adequate means of protection from the numerous Indian tribes which surround us; for the purchase of territories which they are willing to sell; and for agents with authority to regulate intercourse between whites and Indians, and between Indian tribes. That donations of lands may be made according to the inducements held out to us by the passage of a bill through the United States senate, at the second session of the 27th congress, entitled "A bill to authorize the adoption of measures for the occupation and settlement of the territory of Oregon, for extending certain portions of the laws of the United St; over the same, and for other purposes." That navy-yards and marine depots may be established on the River Columbia and upon Puget's Sound, and a naval force adequate to our protection be kept permanently in the adjacent seas. We pray for the establishment of such commercial regulations as may enable us to trade in our own territory, at least on an equality with nonresident foreigners. We pray that adequate military protection be given to emigrants coming to us, either by the establishment of posts upon the route or by military escort. And we pray that in the event you deem it inexpedient in a measure, or contrary to the spirit of existing treaties, to establish a territorial government in Oregon, that you extend to us adequate military and naval protection, so as to place us at least upon a par with other occupants of the country. That a public mail be established to arrive and depart monthiy from Oregon City and Independence (Mo.), and such other local routes be established as are essential to the Willamette country and other settlements.   'For the granting of which your memorialists will ever pray. 'Osborne Russell, 'Peter G. Stewart, 'Executive Committee.   'J. W. Nesmith, Judge of Circuit Court.   'M. M. McCarver, Speaker. 'Jesse Applegate, 'Medard G. Foisy, 'W. H. Gray, 'J. M. Garrison, 'Abijah Hendricks, 'David Hill, H. A. G. Lee, Barton Lee, John McClure, Robert Newell, Hiram Straight, 'Members of Legislative Committee.   'Done at Oregon City, 28th June, 1845. Or. Archives, MS., 70-83.'Attest: J. E. Long, Clerk.'   This memorial, as it appears on page 24 of the Congressional Globe, 1845-6, differs from the above in having the paragraph concerning mails inserted between those on the navy and commerce; and in having the name of J. W. Smith, which is lacking in the above copy, inserted between those of Newell and Straight; and also in the spelling of the speaker's name, which is incorrect in the Globe.
* ↑ Thomas H. Benton remarked upon it that it was drawn up in a manner creditable to the body by which it was presented, to the talents by which it was dictated, and the patriotic sentiments which pervaded it; and the application was worthy of a favorable consideration for its moderation, reasonableness, and justice. As the best means of spreading the contents of this petition before the country, and doing honor to the ability and enterprise of those who presented it, he moved that it be read at the bar of the senate. Cong. Globe, 1845-6, 24. It was read, and ordered printed. Evans' Hist. Or., MS., 283-4.
* ↑ Clyman says in his Diary, MS., 101: 'Spent the day in writing an answer to some queries propounded by Dr White, who leaves for the States in the hope of obtaining the gubernatorial chair.'
* ↑ White's Report, in Or. Archives, MS., 87-94.
* ↑ Grover's Or. Archives, 103.
* ↑ See Spectator, Jan. 21, 1847.
* ↑ White received from congress $486.52½ for his expenses on this exploring tour. Concise View, 65.
* ↑ The resolutions were to the effect that the adoption of the organic law by the people of Oregon was an act of necessity rather than choice, intended to give them the protection which their government should have extended to them, and not an act of defiance or disregard of the laws of the United States; and that in establishing a territorial government, congress should legalize their acts so far as they Mere in accordance with the constitution of the United States. Also that White be requested to furnish a copy of the organic law to congress, said copy being indorsed with the above resolutions. 'Grover s Or. Archives, 106.
* ↑ White's adventures in crossing the plains with his small party consisting of Harris, Edmonds, Brown, Saxton, Du Guerre, Chapman, and another unknown man, are briefly given in his Ten Years in Oregon. See also Niles' Reg., lxix. 224. Slight as is the narrative, I think it may safely be inferred that the unfortunate attempt of a portion of the immigration of this year to make a road up the Malheur River, and into the upper part of the Willamette Valley, was the result of his advice. Certain it is that he met all the different companies, and talked with them, and had he advised them not to attempt a new route, they would have obeyed him. Had they succeeded in finding one, he would have taken to himself the credit of giving the information. White returned to the Pacific coast in 1861, as a special Indian agent under Lincoln's administration, a position obtained by representing himself as better acquainted with Indian affairs than any man in the department of the west. He did not long hold the unnecessary office, and failing at Baker Bay, where he endeavored to build a town called Pacific City, finally settled in San Francisco, where he died in March 1879, as before stated. He was thoroughly disliked by the western men who assumed the direction of Oregon affairs, for what they termed his smooth-tongued duplicity. That he was a sycophant to a certain extent is true. His character is revealed in a single sentence of his own concerning his reception in Washington by the Missouri delegation, to whom he was instructed to report. 'He returned to his lodgings, scarcely repressing a smile at the seeming importance a four years' residence in the Oregon woods had given him.' Ten Years in Or., 316. Notwithstanding his faults, it cannot be said that he was ever an enemy to good order or good government. See p. 291, note 34, this volume.
* ↑ The most peculiar suggestion contained in the executive message was one concerning indebtedness, To prevent litigation arising from the facility of obtaining credit in the colony, he recommended the passage of a law which would prevent the collection of all debts or notes taken for debts contracted after its passage, by judicial process. This, he argued, would save the time and labor of the courts, and make all persons more careful as to the disposal of their property, and more punctual in the payment of debts, since if they failed once, they could expect no further favors. Allowances would be made for a man who was in misfortune, but the debtor who could pay and would not would soon find himself shunned. Some further recommendations concerning the best means of securing an effective militia, and the means of establishing common schools and building school-houses, concluded the message. Or. Archives, MS., 31-6.
* ↑ Applegate remarks that McCarver was found of talking, and to prevent him from taking up too much time, they made him speaker. Gray says he obtained the sobriquet of 'Old Brass Gun.' Hist. Or., 376. Roberts mentions the same thing. There are several anecdotes of McCarver. One is that when the first California con. conv., of which he was member, was in session, a proposition was made to establish the northern boundary so as to take in the Rogue River Valley; when McCarver sprang to his feet, and exclaimed, 'Mr President, as a citizen of Oregon, I protest against the segregation of that territory;' whereupon the Caiifornians named him 'the member from Oregon.'
* ↑ Grover's Or. Archives, 93. This resolution appears to have been aimed at the disposition made of the estate of Ewing Young by the legislature of 1844. It was, however, in consonance with the spirit of a resolution by Garrison at the previous session, that the legislature had no right to tax the people without previously having obtained their consent, and which was adopted. Perhaps the suggestion of the governor that farms should be taxed as well as merchandise and live-stock was also referred to, the opposition to taxing land being very strong among the settlers.
* ↑ Grover's Or. Archives, 98-9; Gray's Hist. Or., 429.
* ↑ Or. Archives, MS., 68-9.
* ↑ From a mutilated letter in the Or. Archives, MS., the following is taken: 'I have the honor to acknowledge the receipt of the resolucion left at my office with Mr Campbell. . . . But after again giving the subject my fullest consideration, I am sorry it u not in my power, consistent with my trust, to give any other answer than that in mine of the 12th inst. I have, etc.   'Oregon City, Aug. 20, 1845.John McLoughlin.'
* ↑ Or. Laws, 1843-9, 32.
* ↑ Or. Archives, MS., 69-70.
* ↑ Applegate had resigned before the legislature passed this unjustifiable act. In his marginal notes to Gray's History, 430, he says: 'Dr McLoughlin was bound to the government of the United States for the safe-keeping and delivery of the launch of the Peacock; and not to any of its dependencies.' See Niles' Reg., lxx. 340.
* ↑ Howison's Coast and Country, 4; Or. Spectator, Sept. 3, 1846. Gray says because the doctor refused to deliver the boat to the Oregon legislature, it was 'allowed to rot on the beach at Astoria.' Hist. Or., 430. If it did so rot, it was as the private property of a citizen of Oregon.
* ↑ It seems from the archives that McClure from the committee on districts reported a bill in relation to two counties north of the Columbia; but that Applegate, who had a prejudice in favor of the word 'district,' was allowed to control the choice. It was his wish, also, to name the two counties Lewis and Clarke; but upon reconsidering the matter, gave up Clarke for Vancouver. Only one district was defined at this time; and at the next session Lewis County was created, and the word 'county' was substituted for district in all the laws where it occurred.
* ↑ Or. Laws, 1843-9.
* ↑ Applegate says: 'To organize a civil or military power that did not include all parties was simply organizing internecine war. To prevent such a state of things, I took a seat in the legislature.' Marginal notes on Gray's Hist. Or., 422.
* ↑ This man is several times referred to in McLoughlin's Private Papers, where he says Chapman boasted that he came all the way from the States for the purpose of burning Fort Vancouver. White relieved the country of this dread by inducing Chapman to return with him to the United States. But there were several dangerous men who came with the immigrations in the territory, of whom McLoughlin stood in fear, one of whom confessed in a Methodist camp-meeting that he had belonged to the famous Murrill band of robbers which gave the authorities trouble for a number of years in the Mississippi Valley. Burnett speaks of several 'idle, worthless young men, too lazy to work at home, and too genteel to steal; while some others were gamblers, and others reputed thieves;' but says that in Oregon they were compelled to work or starve, and that this necessity made them good citizens. Recollections of a Pioneer, 180-1.
* ↑ Gray's Hist. Or., 422.
* ↑ Private Papers, MS., 3d ser., 15.
* ↑ Private Papers, MS., 2d ser., 13, 14.
* ↑ >Tolmie, in his Hist. Puget Sound, MS., 22, says substantially that McLoughlin and Applegate arranged between them the method by which the British and Americans could unite without prejudice to their duties as loyal citizens and subjects of their respective countries.
* ↑ 'Oregon City, Aug. 14, 1845. To Dr John McLoughlin, Chief Factor of H. B. Co.Sir: As a question has arisen in the house of representatives on the subject of apportionment upon which we feel peculiarly situated, we beg leave to ask of you a question, the answer to which will enable us to come to a definite conclusion upon that subject. The question to which we would be happy to receive an answer is this: Do you think the gentlemen belonging to the company over which you preside will become parties to the articles of compact, by the payment of taxes and in other respects complying with the laws of the provisional government? Your answer to this query is most respectfully solicited. Yours, with the highest respect. I. W. Smith, H. A. G. Lee, J. M. Garrison, Barton Lee.' Or. Archives, MS., 71.
* ↑ 'Oregon City, Aug. 15, 1845. I. W. Smith and others. Gentlemen: We have the honor to acknowledge your favor of the 14th inst., and beg in reply to say that, viewing the organization as a compact of certain parties, British and American subjects residing in Oregon, to afford each other protection in person and property, to maintain the peace of the community, and prevent the commission of crime—a protection which all parties m this country feel they particularly stand in need of, as neither the British nor American government appear at liberty to extend the jurisdiction of their laws to this part of America; and moreover seeing that this compact does not interfere with our duties and allegiance to our respective governments, nor with any rights of trade now enjoyed by the Hudson's Bay Company—we, the officers of the Hudson's Bay Company, consent to become parties to the articles of compact, provided we are called upon to pay taxes only on our sales to settlers. We have the honor to be, etc. John McLoughlin, James Douglas. Or. Archives, MS., 72.
* ↑ At the very time these negotiations were going on, a resolution was offered in the house by David Hill, 'that no person belonging to the Hudson's Bay Company, or in their service, shall ever be considered as citizens of the government of Oregon, nor have the right of suffrage or elective franchise;but was rejected by the majority.
* ↑ Joel P. Walker had returned from California, whither he went in 1841, and brought with him a large herd of cattle for sale. He remained several years in Oregon, but finally settled permanently in California.
* ↑ The English fleet of war in the Pacific, besides the America, consisted of the following vessels: Collingswood, ship of the line, 80 guns, Sir G. F. Seymour, commander. Frigates: Grampus, 50 guns, C. B. Martin, commander; Fisgard, 42 guns, J. A. Duntz, commander; Juno, 26 guns, P. J. Blake, commander; Talbot, 26 guns, Sir T. Thompson, commander; Carysfort, 26 guns, Seymour, commander; Herald, 26 guns, Henry Kellet, commander. Sloops: Modeste, 18 guns, Thomas Baillie, commander; Daphne, 18 guns, Onslow, commander. Steamers: Sampson, 6 guns, Henderson, commander; Cormorant, 6 guns, George T. Gordon, commander; Salamander, 6 guns, A. S. Hammond, commander. Brigs: Frolic, 6 guns, C. B. Hamilton, commander; Pandora, 6 guns, S. Wood, commander. Spy, brigantine, 3 guns, O. Woodbridge, commander. Total number of guns, 355. United States vessels of war in the Pacific: Columbus, ship of the line, 86 guns, Biddle, commander. Frigates: Congress, 60 guns, Stockton, commander; Savannah, 60 guns, J. D. Sloat, commander. Sloops: Portsmouth, 24 guns, Montgomery, commander; Levant, 24 guns, Page, commander; Warren, 24 guns, Hall, commander; Cyane, 24 guns, Mervine, commander. Shark, schooner, 12 guns, Howison, commander. Erie, store-ship, 8 guns, Turner, commander. Total number of guns, 322. Oregon Spectator, Dec. 10, 1846.
* ↑ Private Papers, MS., 2d ser., 16.
* ↑ Roberts' Recollections, MS., 5.
* ↑ Views of History, MS., 14, 15.
* ↑ Says Roberts: 'The doctor counselled those about him to peace, saying that all that could be done in Oregon in the event of a war between the United States and Great Britain could not affect the final issue, and it was better to remain friends.' Recollections, MS., 61.
* ↑ It is said that Gordon, when questioned, agreed with McLoughlin, that 'the country was not worth a war,' but on entirely different grounds. He was speaking literally, because he found the Nisqually plains a bed of gravel; and because, being fond of angling, the salmon would not rise to the fly. A country where the fish were not lively enough for his sport was in his estimation worthless. But the salmon were not the only fish in Oregon that refused to rise to the fly of the British angler.
* ↑ This information was communicated by letter to the N. Y. Journal of Commerce, and copied in the S. I. Polynesian of April 25th, whence it found its way into the Or. Spectator, July 4, 1846.
* ↑ Roberts describes Peel as a 'fine young fellow well bronzed, rather taller, but reminding me of young Dana, geologist of the U. S. exploring expedition. Peel died in India, in command of the Shannon.' Park, he says, was a 'well-knit man, capable of unlimited service, who probably had charge of Peel.' Neither was an officer of the America. Recollections, MS., 5.
* ↑ McLoughlin, in answer to this particular charge, says that ever since 1826, when Smith, Sublette, and Jackson led their trapping parties west of the Rocky Mountains, the Americans had outnumbered the British in Oregon. This would have been a point on the side of the American plenipotentiary had he known it.
* ↑ By the wording of the report of Warre and Vavasour, it might be inferred that they preferred the immigrants to be cut off, and blamed the doctor that they were not.
* ↑ I have before me a letter written by Courtney M. Walker, who was for some time a clerk of the company at Fort Hall, in which he says: 'Well indeed was it that this noble man was at the head of affairs of the Hudson s Bay Company when the American pioneers came to these shores seeking homes; tor without the aid they met at the hands of the doctor, they could not have remained or lived. When it was known at Vancouver that immigrants were coming across the plains, orders were sent along the line to Walla Walla, Boisé, and Fort Hall, not to let the poor people suffer, but to help them along, and teach the Indians to do so also.
* ↑ Four cases are mentioned; the claim of McTavish, the intruder, being put off by the organization; the claim of his son, his own, and the company's lands at Vancouver.
* ↑ Reference is here made to the fact that some of the company s servants were allowed to made claims on the land about Vancouver under the lana law, to keep off Americans, with the understanding that they held or the company, but who refused afterward to relinquish their possession. Roberts' Recollections, MS., 61.
* ↑ I have taken this abstract of McLoughlin's defence from his remarks on the report of Warre and Vavasour, which was sent by Sir George Simpson to Mr Douglas, and by him handed to McLoughlin after he had resigned and settled at Oregon City in 1840. It constitutes series 3, Private Papers.
* ↑ House of Commons Rept., 294.
* ↑ Gray's Hist. Or., 153; Parrish's Or. Anecdotes, MS., 98; Simpson's Or. Ter. Claims, 32-5.
* ↑ Tolmie's Puget Sound, MS., 47; Holden's Pioneering, MS., 2, 3; Moss' Pioneer Times, MS., 30.
* ↑ 'Every British subject south of the Columbia would have followed his example,' says Applegate; 'then in case of war we would have had friends instead of enemies in our midst; and it would not have left the shadow of truth to the falsehood used by his enemies that he was a British propagandist, and had refused to become an American citizen.'
* ↑ These debts aggregated a sum variously stated by different authorities, but usually at about $60,000. Applegate says this charge was revoked on the motion of his associates in office, who protested in a body against the injustice to a man who had been of such service to the company; but that notwithstanding this he preferred to be responsible for a large amount. The personal pride and dignified reticence of McLoughlin prevented a knowledge of his private affairs becoming public; and even his family ami heirs were in ignorance concerning his losses. Sir James Douglas testified before the joint commission which settled the affairs of the Hudson's Bay and Puget Sound companies, that the doctor was not held responsible for the debts of the American settlers. H. B. Co. Ev., H. B. Co. Claims, 61. J. Q. Thornton, who at one time was his attorney, stated before the same commission, and has frequently asserted in public, that the company held McLoughlin responsible. The same statement is made in Thornton's Hist. Or., MS., 7-13; Gray's Hist. Or., 321-2; Blanchet's Cath. Ch. in Or., 71; Waldo's Critiques, MS., 14, and in many authorities not here quoted, because most of them are simply copyists of the others. And while I think it quite probable that his fellow-officers made an offer to bear their portion of the loss, from the best information I can gather, I am persuaded that the principal burden came upon him by his own choice, and through his Scotch pride. His daughter states that she overheard, after his removal to Oregon City, some gentlemen conversing about his affairs, who said that he ' had trusted the immigrants more than he could himself pay.' Harvey's Life of McLoughlin, MS., 33.