aymaster,
and Thomas Claiborne, Jr., captain of the rifle regiment. As there was no doubt of the guilt of the accused, which was sufficiently established on evidence, the defense took the ground that at the date of the massacre the laws of the United States had not been extended over Oregon; the court ruling out this plea by citations of the act of congress of 1834, regulating intercourse with Indians, and the boundary treaty of 1846, which confirmed to the United States all of the Oregon territory south of the forty- ninth parallel. The judge, 0. C. Pratt, might have added that the organic law of the territory confirmed the laws of the provisional government of Oregon not in conflict with the laws of the United States.
Claiborne endeavored to show that in 1834 Oregon was in joint occupancy with Great Britain, and that jurisdic tion was barred, and quoted the act of eminent domain to make it appear that Great Britain could still object to these proceedings should she choose. The questions being argued, Judge Pratt decided that exclusive jurisdiction over Oregon being vested in congress by the treaty of 1846, the act of 1834 ipso facto came into force in the territory, whose jurisdiction was undoubted. Olaiborne then peti tioned for a change of venue, which was refused.
The jurymen called were thirty-eight, out of which number all the older settlers, or those liable to be embit tered against the Indians, were carefully excluded. 11 It could not therefore be said that a fair trial was not accorded the Cayuses, or that their attorneys overlooked any loop hole of escape. They, indeed, argued that the death of Dr. Whitman was brought about by a combination of cir cumstances; that there was no absolute proof that the prisoners were the actual murderers, the evidence of the witnesses being confused and more or less conflicting; and that in any case the death of wives and children among
n The jury accepted were J. D. Hunsaker, A. Jackson, Hiram Straight, Wm. Par- rott, Wm. Cason, A. Post, Samuel Welch, Joseph Alfrey, John Dinman, Anson Cohen, John Ellenburg, and A. B. Holcoinb.
