Document I
Ricord’s Proclamation; letters of A. Lawrence Lovejoy and Rev. A. F. Waller of March 20, 1844; Ricord’s Caveat; invalidity of Waller’s claim to Dr. McLoughlin’s land; and excerpts from letters of Rev. Jason Lee to Rev. A. F. Waller and Rev. Gustavus Hines, written in 1844.
The following is a copy of a proclamation dated December 20, 1843, and issued by John Ricord, as attorney for Rev. Alvin F. Waller. The original of this document in the handwriting of Ricord, and signed by him, pasted on cloth, is in the possession of the Oregon Historical Society. Said original was publicly posted at Oregon City by Waller after Ricord left for the Hawaiian Islands. It shows weather stains, but is perfectly legible.
“To The People of Oregon.
“Fellow Citizens,
“Having been Retained professionally to establish the Claim of Mr. Alvin F. Waller to the Tract of Land on the East Bank of the Wallammette River, sometimes called the Wallammette Falls Settlement and sometimes Oregon City, I consider it a duty to my Client and the public, to state briefly and concisely the several circumstances of his case, as they really exist, in order that his motives may not be impugned and his intentions misunderstood and misrepresented.
“The public are already aware that my client commenced the Occupancy of his Farm, in the spring of A. D. 1840, when no one resided at the falls; and that, in the course of that Summer, he built his Home, moved his family into it, and cleared and fenced a good portion of the Land, from which, in the ensuing years A. D. 1841 & 1842 he raised successive crops of corn, Potatoes and other vegetables usually cultivated by Farmers. That he remained thus occupying undisturbed, until the month of December A. D. 1842, about two years and six months, when Doctor McLoughlin caused his Farm to be surveyed, for the purpose of selling it in subdivisions to American Citizens. It has since been currently reported and quite generally believed, that my client had renounced his right in favor of Doctor McLoughlin. This I am authorized to contradict, having perused the letter written by Mr. Waller, which not only contains no renunciation, but on the contrary, is replete with modest and firm assertions of his rights in the premises: offering at the same time to relinquish his claim, if the Doctor would comply with certain very reasonable and just conditions. Upon this offer, the parties had come to no final conclusion, until my arrival in the Colony, when Doctor McLoughlin attempted to employ me to establish his claim, disregarding the rights of all other persons—which, I declined doing. Mr. Waller thereupon engaged me to submit the conditions a second time to the Doctor, for his acceptance or rejection; which I did in the following words:
“1st. That your preemptive line be so run as to exclude the Island upon which a private Company of Citizens have already erected a Grist Mill—conceding to them so much water as may be necessary for the use of said Mill.
“2d. That Mr. Waller be secured in the ultimate Title to the two city Lots now in his possession and other lots not exceeding in superficial area five Acres, to be chosen by him from among the unsold lots of your present Survey.
“3d. That the Rev. Mr. Lee on behalf of the Methodist Episcopal Mission, be in like manner secured in the lots claimed for the use of said Mission. They consist of Church and Parsonage lots and are well known to the public.
“I received a letter from Dr. McLoughlin dated 10th Novr. 1843, in answer to mine, in which he declines complying with the above Conditions, and thus puts an end to the offer of my Client to relinquish his right of Preemption. Under these circumstances Mr. Waller has now applied to the Supreme Court of the United States, which, under the Constitution has original jurisdiction of ‘all cases in Law & Equity, arising under Treaties,’ to grant him a Commission for perpetuating the testimony of the facts in his case, de bene esse, in order that, whenever Congress shall hereafter see fit to prescribe by law the conditions and Considerations, he may be enabled to demand of the United States, a Patent; also praying the Court to grant him such other relief in the premises as may be consonant with Equity and good conscience.
“The Legality of Mr. Waller’s claim rests upon the following Grounds:—
“1st. He was a citizen of the United States of full age and possessed of a family when he first came to reside on the premises. 2d. He built a House upon them and moved his family into it; thus becoming in Fact and in Law a Householder on the land. 3d. He cleared, fenced and cultivated a portion of it during two years and six months, before he was disturbed in his actual possession. And 4th. That he is not at this moment continuing the cultivation of his Farm, is not his fault since it was wrested from him.
“The Illegality of Doctor McLoughlin’s Claim rests upon the following Grounds:—
“1st. He is a British Subject, owing allegiance to a Foreign Power, and has so continued to be ever since the Spring of A. D. 1840. For this reason alone he could not acquire preemption to lands in the United States.
“2d. He is the Chief Officer of a Foreign Corporate Monopoly. For this reason alone he could not acquire preemption to lands in the United States.
“3d. He does not now and never did reside on the land in question, but on the contrary, he resides and has always continued to reside on the North side of the Columbia River, the Section of country actually in dispute between the two Governments, about Twenty miles from the land claimed by Mr. Waller, and there he is obliged to remain, so long as he continues to be Chief Factor.
“4th. He is not in fact the Claimant. The Hudson’s Bay Company, a Foreign Corporation, is in fact the Claimant while Doctor McLoughlin only lends his name; well knowing, that a Corporation even though it be an American one, can not acquire a preemption. This is evinced by the employment of men to be his Agents and to sell lots for him, who are at the same time partners in and receiving dividends and Salaries from the Company.
“5th. The pretentions of Doctor McLoughlin arose, if at all, two years and six months after the actual Settlement of Mr. Waller; and therefore they are in direct violation of the Treaty of A. D. 1827: Converting the mutual and joint occupancy into an exclusive occupancy by British subjects.
“6th. The Treaty of joint occupancy [1827] does not and was never intended on the part of the United States, to confer any rights of citizenship upon Foreigners. The Power to confer such rights is by the Constitution reserved to Congress. And the right to acquire title by preemption is peculiar to citizens.
“Those fellow citizens are the Facts and some of the Points of Law in my client’s case. Upon the same principle contended for by Dr. McLoughlin, any of you may incur the risk of being ousted from your Farms in this Colony, by the next rich foreigner who chooses to take a fancy so to do, unless in the first instance, you come unanimously forward and resist these usurpations. It is not my client’s intention to wrong any who have purchased Lots of the Doctor, and to guard against the injury which might result to individuals in this respect, I have carefully drawn up the Form of a Bond for a Warantee Deed, which Mr. Waller is at all times ready, without any further consideration, to execute to any person who has, in good faith, bought of the Doctor, prior to the date of this notice, by being applied to at his residence. Mr. Waller does not require one cent of money to be paid to him as a Consideration for his Bonds—the trouble, expense and outlays they have already incurred, with the desire to save all such persons harmless from pecuniary loss, is a good and sufficient Consideration in Law to bind him in the proposed penalty of One Thousand Dollars. See Comyns. Digest, Assumpsit B.
“I am of opinion that Mr. Waller has rights in the premises, which neither Doctor McLoughlin nor even Congress by any retrospective legislation can take away from him;—and therefore, fellow citizens, in sincere friendship, I would counsel you to lose no time in applying to him for your new Bonds.
“John Ricord,”
“Counsellor in the Supreme Court of
the United States and Attorney
for Alvin F. Waller.”
“Dated 20th December, 1843.”
The following two letters from A. L. Lovejoy to A. F. Waller and from Waller to Lovejoy, each dated March 20, 1844, are in reference to the foregoing proclamation by Ricord as attorney for Waller. These letters are in the handwriting of Lovejoy and Waller, respectively. The letter of Waller is shown by the line below Waller’s signature to be a copy which he made and kept to show what he had written. These letters are in the possession of the Oregon Historical Society. They were among Waller’s private papers at the time of his death.
“Wallamette Falls 20 Mar. 1844.”
“To the
“Revd. A. F. Waller—
“I have been directed by Dr. McLoughlin to make some enquiries of you in relation to a letter which appears to have been written by yourself to him relative to his claim. Dr. McLoughlin observes in your notice to the People of Oregon words like the following:
“‘It has since been currently reported and quite generally believed that my client had renounced his right in favor of Dr. McLoughlin. This I am authorized to contradict having perused the letter written by Mr. Waller which not only contains no renunciation but on the contrary is replete with modest and firm assertions of his rights in the premises.’
“Please have the kindness to say whether you wrote such a letter as there referred to and if so. As Dr. McLoughlin has never received anything of the kind allow him through me to solicit a copy thereof and much oblige.
“I am Revd. Sir,
“Your humble and obt. servant,
“A. Lawrence Lovejoy.”
“Willamette Falls, 20 Mar. 1844.”
“Mr. Lovejoy.
“Dear Sir:
“The letter referred to in the Notice was one written to Rev. J. Lee in answer to one he wrote me. I think I have never written a line to Dr. McLoughlin on any subject. Mr. Lee I presume has the letter with him.
“I am yours truly,
“A. F. Waller.”
“Copy of a reply to the within.”
The following copy and statement of John Ricord’s caveat or notice as attorney for Rev. Alvin F. Waller to Dr. McLoughlin is taken from Mrs. Frances Fuller Victor’s volume, The River of the West, page 358: “‘You will please to take notice that my client, Mr. A. F. Waller, has taken formal measures at Washington to substantiate his claim as a preemptor and actual settler upon the tract of land, sometimes called the Wallamet Falls settlement and sometimes Oregon City, comprising six hundred and forty acres; and being aware that, although a foreigner, you claim to exercise acts of ownership over said land, this notice is given to apprise you that all sales you may make of lots or other subdivisions of said farm, after the receipt hereof, will be regarded by my client, and by the government, as absolutely fraudulent, and will be made at your peril.’”
Then followed the grounds upon which the Doctor’s claim was denied. “First, that he was an alien; Secondly, that he was the chief of a foreign corporate monopoly; Thirdly, that he had not resided upon the land in question for a year previous; Fourthly, that he did not hold the land for himself but the Company; Fifthly, that his claim, if he had any, arose two years subsequent to Mr. Waller’s settlement thereon. This flattering document closed with Mr. Ricord’s regrets that he had ‘failed to make an amicable compromise’ of the matter between the Doctor and his client, and also that his ‘client had been driven to the vexatious proceedings of the law, in order to establish his rights as an American citizen.’” This caveat or notice was served on Dr. McLoughlin in 1844 prior to April 4, after Ricord left Oregon for the Sandwich Islands.
The attempt of Rev. A. F. Waller to assert any right to, or to procure the land claim of Dr. McLoughlin, or any part of it, at Oregon City, under the law relating to pre-empting lands was absurd as well as invalid. Under the act of Congress of September 4, 1841, then in force, relating to the pre-emption of public lands of the United States, it was necessary that the lands should be a part of the public lands of the United States. The Conventions of joint-occupancy were then in force and neither Great Britain nor the United States exercised jurisdiction over the lands in the Oregon Country.
In addition to other requisites of the pre-emption law, no person could pre-empt more than one hundred and sixty acres, and the law required the intending pre-emptor “to enter with the Register of the Land-Office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land,” etc.
There was no United States land district in Oregon nor any Register of any United States land-office. There had been no public surveys of land in Oregon. No lands could be legally pre-empted which had not been officially surveyed by authority of the United States.63
In the case of Lytle v. State of Arkansas, 9 Howard (U. S. Supreme Court) 314, it was held, concerning a claim to pre-emption, that “until sanctioned by law, it has no existence as a substantive right.” In the case of Brown v. Coursen, 16 Oregon, 388, it was held that a pre-emption is a right derived wholly from statute and a substantial compliance with the statute is necessary; and the condition must exist which would enable the pre-emptor to acquire the land under the statute. In the case of Stark v. Starrs, 6 Wallace (U. S. Supreme Court) 402, it was held that even the act of August 14, 1848, organizing the Territory of Oregon, did not extend over Oregon any portion of the preëmption act of September 4, 1841.
Ricord and Rev. Jason Lee sailed on the same vessel from the Columbia River bound to the Hawaiian Islands. They left Oregon City January 4, but did not cross the Columbia River bar until February 3, 1844. Ricord did not intend to return to Oregon. He made his home at the Hawaiian Islands (then called Sandwich Islands) and died there. Rev. Jason Lee intended merely to make a trip to the Eastern States and return to Oregon. He wished to see the Missionary Board in New York. He also wished to go to Washington to see about land matters, particularly those which the Methodist Mission wished to obtain the title to. When he arrived at Honolulu he first learned that he had been removed as Superintendent of the Oregon Mission, and that Rev. George Gary was on his way to take charge. February 28, 1844, Rev. Jason Lee sailed on a small schooner called the “Hoaikaika” for Mazatlan, Mexico.64 After his arrival at Mazatlan, Jason Lee crossed Mexico. He arrived in New York May 27, 1844. In June he went to Washington. On his return to New York he appeared before the Missionary Board for several days, beginning with July 1, 1844, and submitted his oral report on the Oregon Mission.
As relating to land claims in Oregon, I make the following excerpts from two letters written by Rev. Jason Lee after leaving Oregon. The originals of these letters are in the possession of the Oregon Historical Society. The first of these letters was written on board the schooner Hoaikaika, March 23, 1844, to Rev. A. F. Waller. In this letter Jason Lee says: “I paid Mr. Ricord Two hundred and Fifty dollars for you and shall inclose your order to Bro. Abernethy.... What the result of your land claim will be, of course, I can form no better opinion than when I left. But I have less hopes of effecting anything for the Mission more than to prepare the way for something to be done at the proper stage, that is, whenever the Government shall be prepared to grant title.... I long to hear how you are getting on with Dr. —— &c., and how the good cause is prospering. May the Lord bless all who have embraced his cause and keep them unto ‘that day.’”
The second of these letters is to Rev. Gustavus Hines. It is dated at New York July 1, 1844, and written after the return of Rev. Jason Lee from Washington. He wrote: “Met a favorable reception there [Washington] and there is every reason to expect that the land claimed will be cheerfully accorded to us.... Please tell Bro. Waller that his claim is filed in the Office of the Commissioner General of the land office. This will probably secure his claim, though the Supreme Court will probably take no action till an Oregon Bill passes.” Waller, however, had “surrendered” all his rights in “his” (the McLoughlin) “land claim” April 4, 1844.65