1840.—Petition to Congress of United States.—British subjects amenable to the laws of Canada.—Esquire Douglas as justice of the peace.—Mr. Leslie as judge.

Eighteen hundred and forty finds Oregon with her little population all active and busy, laboring and toiling to provide the necessaries of life—food and raiment. And if a man did not wear the finest of broadcloth, his intelligence and good conduct secured him a cordial welcome to every house or shanty in the country among the American or French settlers and missions. This was an innovation upon Hudson’s Bay Company customs, and a violation of aristocratic rules sought to be enforced by foreign influences and sustained by the missionaries then in the country.

Mr. Hines, in his 21st chapter on Oregon, says: “The number of people in the colony was so small, the business transactions so limited, and the difficulties so few, that the necessity of organizing the community into a body politic did not appear to be very great, though for two years persons had been chosen to officiate as judges and magistrates.”

The fact that the judges and magistrates officiating were chosen by the Methodist Mission, in opposition to the wish of the settlers, and from whose decisions there was no appeal, and that there was no statute or law book in the country, and nothing to guide the decisions of the judge or magistrate but his own opinions, caprice, or preferences, Mr. Hines leaves out of sight. This state of things was submitted to from the combined organized influence of the Methodist Mission and the unorganized condition of the settlers. A petition was gotten up and sent to Congress. This petition is too important a document to be omitted. The writer has no means at present to give the names attached to it. The petition speaks for itself. As settlers, we saw and knew the objects of the Hudson’s Bay Company and the English government, by their actions and oft-repeated insolent assertions that they meant to “hold the country” by fair or by foul means, which, as men understanding the unscrupulous and avaricious disposition of the entire English occupants of this country, we fully understood and duly appreciated, as will be readily demonstrated upon a perusal of the following:—

Petition of 1840.

To the Honorable the Senate and House of Representatives of the United States of America in Congress assembled:

Your petitioners represent unto your honorable bodies, that they are residents in the Oregon Territory, and citizens of the United States, or persons desirous of becoming such.

They further represent to your honorable bodies, that they have settled themselves in said Territory, under the belief that it was a portion of the public domain of said States, and that they might rely upon the government thereof for the blessings of free institutions, and the protection of its arms.

But your petitioners further represent, that they are uninformed of any acts of said government by which its institutions and protection are extended to them; in consequence whereof, themselves and families are exposed to be destroyed by the savages around them, and OTHERS THAT WOULD DO THEM HARM.

And your petitioners would further represent, that they have no means of protecting their own and the lives of their families, other than self-constituted tribunals, originated and sustained by the power of an ill-instructed public opinion, and the resort to force and arms.

And your petitioners represent these means of safety to be an insufficient safeguard of life and property, and that the crimes of theft, murder, infanticide, etc., are increasing among them to an alarming extent; and your petitioners declare themselves unable to arrest this progress of crime, and its terrible consequences, without the aid of the law, and tribunals to administer it.

Your petitioners therefore pray the Congress of the United States of America to establish, as soon as may be, a Territorial government in the Oregon Territory.

And if reasons other than those above presented were needed to induce your honorable bodies to grant the prayer of the undersigned, your petitioners, they would be found in the value of this Territory to the nation, and the alarming circumstances that portend its loss.

Your petitioners, in view of these last considerations, would represent, that the English government has had a surveying squadron on the Oregon coast for the last two years, employed in making accurate surveys of all its rivers, bays, and harbors; and that, recently, the said government is said to have made a grant to the Hudson’s Bay Company, of all lands lying between the Columbia River and Puget Sound; and that said company is actually exercising unequivocal acts of ownership over said lands thus granted, and opening extensive farms upon the same.

And your petitioners represent, that these circumstances, connected with other acts of said company to the same effect, and their declarations that the English government own and will hold, as its own soil, that portion of Oregon Territory situated north of the Columbia River, together with the important fact that the said company are cutting and sawing into lumber, and shipping to foreign ports, vast quantities of the finest pine-trees upon the navigable waters of the Columbia, have led your petitioners to apprehend that the English government do intend, at all events, to hold that portion of this Territory lying north of the Columbia River.

And your petitioners represent, that the said Territory, north of the Columbia, is an invaluable possession to the American Union; that in and about Puget Sound are the only harbors of easy access, and commodious and safe, upon the whole coast of the Territory; and that a great part of this said northern portion of the Oregon Territory is rich in timber, water-power, and valuable minerals. For these and other reasons, your petitioners pray that Congress will establish its sovereignty over said Territory.

Your petitioners would further represent, that the country south of the Columbia River, and north of the Mexican line, and extending from the Pacific Ocean one hundred and twenty miles into the interior, is of unequaled beauty and fertility. Its mountains, covered with perpetual snow, pouring into the prairies around their bases transparent streams of the purest water; the white and black oak, pine, cedar, and fir forests that divide the prairies into sections convenient for farming purposes; the rich mines of coal in its hills, and salt springs in its valleys; its quarries of limestone, sandstone, chalk, and marble; the salmon of its rivers, and the various blessings of the delightful and healthy climate, are known to us, and impress your petitioners with the belief that this is one of the most favored portions of the globe.

Indeed, the deserts of the interior have their wealth of pasturage; and their lakes, evaporating in summer, leave in their basins hundreds of bushels of the purest soda. Many other circumstances could be named, showing the importance of this Territory in a national, commercial, and agricultural point of view. And, although your petitioners would not undervalue considerations of this kind, yet they beg leave especially to call the attention of Congress to their own condition as an infant colony, without military force or civil institutions to protect their lives and property and children, sanctuaries and tombs, from the hands of uncivilized and merciless savages around them. We respectfully ask for the civil institutions of the American Republic. We pray for the high privileges of American citizenship; the peaceful enjoyment of life; the right of acquiring, possessing, and using property; and the unrestrained pursuit of rational happiness. And for this your petitioners will ever pray.

David Leslie, [and others.][1]

We have before alluded to the fact that the English government, by act of Parliament, had extended the colonial jurisdiction and civil laws of Canada over all her subjects on this coast, and had commissioned James Douglas, Angus McDonald, and, I think, Mr. Wark, as justices of the peace, having jurisdiction in civil cases not exceeding two hundred pounds sterling. In criminal cases, if the magistrate found, on examination, sufficient cause, the accused was to be sent to Canada for final trial. In all minor matters the Hudson’s Bay Company were absolute. Their men, by the articles of enlistment, were bound to obey all orders of a superior officer, as much so as a soldier in the army. Flogging was a common punishment inflicted by all grades of officers, from a petty clerk of a trading-post up to the governor of the company. All British subjects, or any that had been subjects to the British crown, were considered as amenable to the laws of Canada, which were delivered from the brain of the magistrate or judge, who perchance may have passed through some parts of Canada on his way to this coast, no one knew when. Of course he knew all about the laws he was to enforce upon her Majesty’s subjects, the same as our American judge, I. L. Babcock, did of the laws he was called upon to administer among the American settlers. Although the following incident is not exactly in the order of time in which we are writing, yet it illustrates the legal knowledge of Esquire Douglas so well that the reader will excuse me for giving it just here. The case occurred in the summer of 1846, I think in August. The Hudson’s Bay Company and the British subjects in the country had changed from the open opposition policy to that of union with the provisional government, and some of the members of the company had been elected to office. Mr. Douglas had received a commission as justice of the peace and county judge from Governor Abernethy. A man by the name of McLame had taken it into his head to jump a claim belonging to one of the company’s servants, near Fort Vancouver. The fact was duly stated to Esquire Douglas, who issued his warrant commanding the sheriff, a servant of the company, to arrest McLame. The sheriff proceeded with his warrant and posse, took McLame, brought him to the fort, and put him in irons to keep him secure until he could be tried. The day following, the writer arrived at the fort, and as he was an old acquaintance of Esquire Douglas, and also holding a commission of justice of the peace and judge of the county court, Esquire Douglas stated the case to him, and asked his advice how to conduct it. I inquired what it was McLame had done.

“Why, he went upon the land of one of our people and set up a claim to it, and made some threats.”

“Did he use any weapons, or injure any one?”

“No; but he was very insulting, as the men tell me; used abusive language and frightened the men, and attempted to get them off the claim, is the most he did.”

“Well, Esquire, I think if you do not manage this case carefully you will have a devil of a muss among these fellows.”

“What do you think I had better do?” says the Esquire.

“If it was my case, as it is yours, I would call the court as soon as possible, and call the parties. McLame claims to know something of law, and he will plead his own case, or get some one that don’t know any more about law than he does, and they will call for a nonsuit on account of some illegality in the warrant or pleadings, and the first show you have, give them a nonsuit, and decide against your own people. This will satisfy McLame and his party, and the matter will end there. The suit is a civil one, and should have been by notice and summons, for ‘forcible entry and detainer,’ instead of an arrest and confinement as a criminal. They may attempt to make false imprisonment out of it. If they do, I would settle it the best way I could.”

I never learned the exact manner in which this case was settled. I think McLame received some compensation and the matter was settled. But the Esquire never fully recovered from the effect of this legal attempt at provisional American wisdom, as he came as near involving the two governments in a national war in the San Juan boundary question, in 1849, as he did the country, in attempting to protect the unreasonable claims of the company’s servants in 1846. As to law books or legal knowledge, the country in those early times could not boast of having an extensive law library or profound lawyers, and, as was to be expected, some new and strange lawsuits occurred.

Of the following case we have no personal knowledge, and can only give it as related to us by parties present. T. J. Hubbard, of Champoeg, had a native wife. She was claimed and coveted by a neighbor of his, who threatened to take her from him. Hubbard was armed, and prepared to defend his own supposed or real right of possession from his covetous neighbor, who attempted to enter his cabin window, or space where a window might be put (in case the owner had one to go there). Hubbard shot him while attempting to enter, and submitted to a trial. Rev. Mr. Leslie presided as judge. A jury was called, and the statements of all parties that pretended to know any thing about the case made. The verdict was, “Justifiable homicide.” The petition which was gotten up about this time, says that “theft, murder, and infanticide, are increasing among them to an alarming extent.” A fact was unquestionably stated in the petition, that justice and virtue were comparative strangers in the country. Despotism and oppression, with false notions of individual rights and personal liberty, were strongly at variance. The leading men, or such as one would naturally suppose to be guides of the erring, seemed to have fixed a personal standard for virtue, justice, and right, not difficult for the most abandoned to comply with.