USA > Oregon > History of Oregon, Vol. I, 1834-1848 > Part 43
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430
LEGISLATIVE PROCEEDINGS.
It is not surprising that there should be those who regarded the existing organization as imperfect. The organic laws, however ably drawn, had clearly been framed by one not versed in law; and while the com- pact, notwithstanding the looseness of its provisions, might be kept by the few who were in the country at the time of its adoption, and who were accompanied to govern themselves without law, it was likely to fail of its object with the addition of several hundred persons annually from all parts of the United States and the world. So, at least, the executive committee had decided, and they threw upon the legislative com- mittee the ungrateful task of casting a doubt on what the friends of the original organization thought good and sufficient, by asking them to remodel the most important portions of that work.
adopted, be so amended as to suit the circumstances of the country. That the militia law be so amended that military officers hold their commission during good behavior, and that each company shall have the privilege of electing their own officers, at such time and place as they shall think fit, ex- cepting the days of annual review; and that such portions of the militia law of Iowa be adopted as will suit all the circumstances of our military organiza- tion. We would recommend that the first article of the land law be so amended as to require that some permanent improvement be made on a claim before recording, and that such improvement be designated on record, with such other regulations relative to land claims, as, in the opinion of this assembly, will be most beneficial to the interests of the public. We would recommend that the fourth article of the land law be repealed, as it is con- sidered detrimental to the interests of the community. We would recom- mend that commissionars be appointed to locate roads, in such places as this assembly shall deem necessary for the interests of the public, and that a law be enacted for the purpose of establishing ferries at different thoroughfares crossing the Willamette River. We recommend the encouragement of the means of education, as far as our limited circumstances will allow. We would also recommend that the laws of Iowa be taken into consideration, concerning blacks and mulattoes, and that a law be enacted for the punish- ment of offenders inciting the Indians against the whites, and regulating the intercourse of the whites among the Indians of this colony. And in con- clusion, we desire to impress upon your minds, that although the colony is sınall, and its resources feeble, yet the life, rights, and liberties of an indi- vidual here are of equal value to him as to one in the city of Washington or London. And it is a duty which devolves on you, and on us, to use as much discretion, vigilance, and caution in maturing and adopting measures for promoting the interests of this little colony, as if we expected our names and acts would be enrolled in the pages of history, or inscribed on pillars of stone, when our day and generation shall have passed away.
Willamette Falls, June 18, 1844.
P. G. STEWART,
O. RUSSELL,
W. J. BAILEY,
Executive Committee.
431
STANDING COMMITTEES.
The legislature of 1844 has been censured by some for undoing so much of the work of the previous year.9 But in their opinion as well as in the judgment of the executive committee, it must be done ; the code of the older colonists must be changed, but it was an un- grateful task. The new-comers composed three fourths of the legislative committee of eight, the ninth mem- ber not being elected. But two thirds of the executive committee who recommended the changes were old colonists.10 Burnett before going to take his seat in the committee had never been at Oregon City, nor examined the laws of 1843.11 Therefore to charge upon him as has been done a premeditated intention of subverting them is manifestly unjust.
Having his attention drawn to the peculiarities of the organic law by the executive committee before making an examination of it, Burnett, who had been district attorney in Missouri, and was an able jurist, declares that on attempting to separate the funda- mental from the statutory part of the code, or to understand where the constitution ended and the statutes began, he found himself unable to do so, and that it became necessary to make some distinction
9 The standing committees were as follows: Ways and means, Newell, Hill, and Gilmore; military affairs, Hill, Kaiser, and Gilmore; land claims, Waldo, Lovejoy, and Newell; roads, Burnett, Waldo, and Kaiser; judiciary, Burnett, Lovejoy, and Gilmore. Gilmore was a plain farmer, and carried no great weight on the judiciary committee. Burnett, it is understood, did the responsible work. The committee to draught rules for the government of the house consisted of Lovejoy, Burnett, and Waldo. The different parts of the executive message were then referred to the committees chosen to consider them; and on motion of Burnett, so much of the executive committee's mes- sage as relates to a more thorough organization, to vesting the executive power in a single individual, and to the appointment of several judges, and also those parts of said message that relate to the amendment of the laws of chancery, were referred to the judiciary committee. Grover's Or. Archives, 39.
10 Gray, who was on the first legislative committee, is very bitter toward the committees of 1844. Hast. Or., 375. And even the more just Applegate, offended because his friend Shortess was not found to be a faultless legislator, says: 'The few and simple duties prescribed to these committees by the organic law were far too limited for the display of abilities and statesmanship which they hoped to obtain the credit of possessing; and not understanding that the apparent defects of the organic law were its wisest provisions, without war- rant first obtained from the people to do, and without submitting their work, when done, to their sanction or rejection, proceeded to remodel the organic law itself to an extent amounting to its subversion.' Views of History, MS., 41. 11 Burnett's Rec., 204.
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432
LEGISLATIVE PROCEEDINGS.
before further legislation could take place. As the organic law then stood, it was either all constitution or all stutute. No mode of amendment having been provided, if the organic law was in fact the constitu- tion of Oregon, to amend it would be revolutionary ; and unless it could be considered as statutory, and amended or appealed, there was nothing for a legisla- tive committee to do. Under these circumstances it was decided to consider the laws in the light of stat- utes, and without altering the spirit or intent of that portion which might be understood to be fundamental, to remodel the remainder where they could be in- proved.
Accordingly on the 27th of June an act was passed "regulating the executive power, the judiciary, and for other purposes." The reader already knows that the expedient of a triumvirate had been adopted, not because it was considered a form of executive power most efficient by the first committee, but to avoid a division by rival candidates which would have defeated the organization. No such necessity now existed; therefore the judiciary act just mentioned vested the gubernatorial power in a single person to be elected at the next annual election, and to hold his office for a term of two years, with a salary of $300 per annum. The legislative power was vested in a house of repre- sentatives consisting of thirteen members; nine being thought too few in proportion to the increased popu- lation.
By the organic law the judicial power was vested in a supreme court, consisting of a judge and two jus- tices of the peace; and in a probate and justice court. By this peculiar combination of jurisdictions, should a decision be made by a majority, the two justices could overrule the supreme judge, or if a unanimous verdict should be required, a disagreement would de- feat any decision. The judiciary act of 1844 vested the judicial power in circuit courts and justices of the peace, and provided for the election of one judge,
433
THE LAND LAW.
with probate powers, whose duty it should be to hold two terms of court, annually, in each county, at such times and places as the law should direct. It like- wise established the duties of clerk, recorder, sheriff, and justices of the peace.
One of the conditions insisted on by the old colo- nists in consenting to a government organization was that they should not be taxed. But the committee of 1844 believed that no efficient and regular govern- ment could be sustained without a revenue; that no revenue could be had without taxation ; and no taxa- tion could be enforced unless the majority were satis- fied with the government. The great majority would not support the organization unless convinced that they were receiving an equivalent in the form of pro- tection, and it was a perplexing question how to secure the support of law-abiding men. 12 The legislative com- mittee remembered, however, that Americans prize above all things the possession of land, and the priv- ilege of the ballot, and shaped their course accord- ingly. The ways and means act in its fourth section provided that any person refusing to pay taxes should have no benefit from the laws of Oregon, and should be disqualified from voting. Thus by outlawing those who refused to support the government, the people began to consider its value to them, and few were willing to forego its assistance in preventing trespass or collecting debts. Nor did many desire to be de- prived of the ballot.13
The land law of 1843 was repealed and another passed in its place. By the first, any person of any age, sex, or race could hold a land claim, while by the
12 This 'refers as much to the Canadians, who were law-abiding, as to the American colonists. Says Brown, Willamette Valley, MS., 31-2, the ‘ Amer- icans played a pretty sharp game on the British subjects to bring them into the organization of this government.'
13 The ways and means act called for a tax of one eighth of one per cent upon the fair valuation of all merchandise brought into the country for sale; on all improvements in town lots; on mills, pleasure-carriages, clocks, watches, horses, mules, cattle, and hogs; and every white voter must pay a poll tax of 50 cents. The sheriff was made collector of the revenue, for which he re- ceived 10 per cent for all moneys received. Burnett's Recollections, 205.
HIST. OR., VOL. I. 28
434
LEGISLATIVE PROCEEDINGS.
law of 1844 the conditions were narrowed. Only free men over eighteen years of age, who would be entitled to vote if of lawful age, and widows, could legally claim six hundred and forty acres. The claimant must take his land in a square or oblong form, and must begin improvements within two months from the time of location with the intention of occupying. Yet a boy under eighteen, if married, might hold land; and all claimants might own town lots in addition to their acres. The custom of recording claims was dispensed with as being of doubtful privilege, the country being unsurveyed, and involving as it would oftentimes a long journey, By an act passed at the second session of the committee in December, the word 'occupancy' was made to mean actual residence by the owner or his agent. The second act also authorized taking six hundred acres of prairie and forty acres of timbered land, not contiguous. Partnership claims were also allowed of double the usual amount, to be held for one year by improvements upon either half; or longer, if both halves were improved within the year. All per- sons complying with the law were deemed in actual possession, and if supporting the government, had the remedy of forcible entry and detainer, and action against trespass.14
These were certainly improvements in the land law. But the great change aimed at by the legislative com- mittee, and desired by the people, was to forbid the right of missions to hold thirty-six sections of land, thus repeating the practice of land monopoly by the Catholic missionaries in California. As a whole, we may be very sure that the repeal of the law of 1843 met with general approval from both the old and new colonists, the missionary element only excepted.15 The
1ª Or. Laws, 1843-9, 72, 77-8; Hines' Or. Hist., 433; Greenhow's Hist. Or., 387.
15 Charles E. Pickett, an emigrant of 1843 to Oregon, but for many years subsequently a resident of California, published in 1877 a pamphlet entitled The Paris Exposition and Other Expositions, in which he asserts his claim to the distinction of having been one of the first to denounce the mission monop-
435
BOUNDS AND DISTRICTS.
law of 1844 placed the missions on the same footing with other claimants. It also ignored the issues be- tween McLoughlin, and Lee and Waller, with regard to the proprietorship of Oregon City.
The seat of government was established by law at Oregon City, called in the act Willamette Falls, after the custom of the early American settlers. The an- nual meeting of the legislature was fixed for the fourth Tuesday in June. An act was passed fixing the time of holding courts in the several districts, and another regulating the salaries of the officers. On petition of J. L. Parrish, a new district called Clatsop was estab- lished, of the extent of which there is no information. 16
It will be remembered that the whole territory of Oregon was divided into five districts by the com- mittee of 1843, but in language so vague that a strict constructionist would be in doubt as to whether the country north of the Columbia was included. The committee of 1844 confined the jurisdiction of the provisional government to the south side of the Columbia, by an act making that stream the northern line of the several counties. 17
This action was susceptible of two interpretations. It might mean that they abandoned the country north of the Columbia to the British government, or it might indicate to the Hudson's Bay Company that its servants were excluded from participation in the benefits of the organization. If the latter, it was more powerful to influence the company than the law
oly, and to enforce his views by taking a claim on the tract reserved by the Methodists. These articles were first published in the S. F. Examiner, Nov. 1877.
16 A compilation was made in 1853 of The Laws of Oregon from 1843 to 1849, incomplete and carelessly done. It is, however, with thanks that the historian accepts so much of a guide to the acts of the temporary government of Oregon. Previously the only printed code was a volume of Iowa laws of 1838. It was brought to Or. in 1843, and furnished the laws adopted in 1844. It was called the 'blue book,' and was bound in blue boards. In 1845 the larger revised statutes of Iowa, of 1843, found their way to Or., also in blue cov- ers, and were partially adopted in 1849. This volume became the ' blue book,' and the first the ' little blue book,' of Or. legislators. Letters of M. P. Deady. 17 Or. Laws, 1843-9, 74.
436
LEGISLATIVE PROCEEDINGS.
of 1843, which extended jurisdiction over the whole Oregon Territory, and held out no threat of outlawry to a portion of its inhabitants. It was one of those fine points which in the existing political conditions of the colony could not be rashly approached. The friends of the original organic laws, who resented the legislation of 1844 as an affront to the wisdom of the first legislature, saw fit to construe the act to mean that protection was withheld from such Americans as might settle north of the Columbia, and accused the legislatures of acquiescing in the claim of the British government, which sought to make that river the northern boundary of the United States. 18
So positive and determined was the opposition to any such admission, even by implication, that at the second session of the committee, in December, an ex- planatory act was passed defining the boundaries of Oregon as lying between latitudes 42° and 54° 40', and extending from the Rocky Mountains to the sea. 19 This made plain the position of the British residents in Oregon; they were without a foothold in it.
The prying eyes of the legislative committee of 1844 discovered that the marriage law of Oregon was open to objection upon the ground that it rendered in- valid marriages contracted without the consent of the parents where either of the contracting parties were under the age of twenty-one, and exposed the couple to the charge of living in adultery as well as their chil- dren to the taint of bastardy. The judiciary com- mittee therefore amended the 17th article of the
18 Applegate's Views, MS., 41; Evans' Hist. Or., MS., 297
19 ' Commencing at that point on the Pacific Ocean where the parallel of 42° of north latitude strikes the same, as agreed upon by the United States and New Mexico; thence along the coast of said ocean, so as to include all the islands, bays, and harbors contiguous thereto, to a point on said ocean where the parallel of 54° and 40' of north latitude strikes the same; thence east along the last parallel, as agreed between the United States and Russia, to the summit of the main dividing ridge of the Rocky Mountains, dividing the waters of the Atlantic and Pacific oceans; thence southerly, following said main dividing ridge to the said parallel of 42° of north latitude; and thence west to the place of beginning.' Or. Laws, 1843-9, 72-3; Clayman's Note Book, 6.
437
MARRIAGE, LIQUORS, SLAVERY
organic laws by an act of three sections making males of sixteen and females of twelve years of age compe. tent to enter into the marriage relation, but re- quiring the consent of the parents, till the man was twenty-one and the woman eighteen. The person marrying minors without the sanction of parents or guardians was made liable to a fine of one hundred dollars, to be paid to the parents or guardians; but the marriage was not invalidated for want of their consent. Burnett says the law was enacted only to obviate the evils sure to grow out of the former one. Early marriages are the rule of all new communities for obvious reasons. In Oregon, especially, where women were few, a girl was sure to have suitors be- fore she had fairly reached maturity. But making children of sixteen and twelve years of age competent to marry led to abuses in colonial and territorial times resulting too often in divorce, and sometimes in death.
One of the acts passed intended to have a whole- some effect upon the colony, and which met the ap- proval of the majority, was a prohibitory liquor law. The penalties were fifty dollars for importing, twenty dollars for each sale, and one hundred dollars for man- ufacturing, together with the destruction of the distil lery. White, as Indian agent, was permitted to make some remarks before the committee in favor of its passage. The administering of the law by White has already been alluded to in a previous chapter.
An act touching the subject of slavery, free negroes, and mulattoes is worthy of notice. The adoption of the ordinance of 1787 as the basis of the organic law of Oregon had already made this free territory, and every article of the laws of 1843 was in consonance with free principles. Some occasion, however, was given for special legislation by an affray at Oregon City in the month of March previous, in which two white men and an Indian had been killed, and the public mind much excited, for all of which it was proven that a free negro was to blame. White had
438
LEGISLATIVE PROCEEDINGS,
asked the secretary of war if the immigration of negroes could not be prevented, and the executive committee had thought the subject of sufficient im. portance to recommend the passage of a law on the subject of such offences as the negro had been guilty of. The opportunity offered for ridding the infant empire of Oregon of the negro, and all the questions dependent upon his presence in the community, was too good to be neglected. There was a deep-seated hatred of slavery by leading men of the western immi- gration. Most of them were natives of slave states, who, not having been of the privileged class of wealthy planters, well understood the evils of poverty and slavery together. They knew that education, honors, and all desirable attainments and dignities were denied to the poor white class of the slave states; and when they emigrated from them they determined to leave behind the clinging curse of caste, and to have for their own a free country, and free institutions to leave to their children. By a curious and contradictory im- pulse of the mind, no southern man, desiring freedom for himself from the evils of slavery, ever could be brought to look with complacency upon a free negro. The black man, though not to blame for the condition of society his presence entailed, was never forgiven for it, nor admitted to be a sufferer by it.
Undoubtedly something of this feeling of caste, where no caste was to be tolerated, influenced the founders of the provisional government of Oregon. Article 4 of the organic laws prohibited slavery or involuntary servitude except for the punishment of crimes whereof the party should have been duly con- victed. The new legislation was intended, besides settling the matter of slavery in Oregon, to rid the country, in time, of every free negro or mulatto in it, and to prevent the coming of others,20 by inflicting
20 ' Be it enacted by the legislative committee of Oregon as follows: Sec. 1. That slavery and involuntary servitude be forever prohibited in Oregon. Sec. 2. That in all cases where slaves shall have been, or shall hereafter be, brought
439
PUNISHMENT OF CRIMINALS.
corporal punishment on all of eighteen years of age, or more, who had not left the territory within two years after the passage of the act. But finding this law to conflict with the spirit of free institutions in too great a degree, it was amended at the December session by repealing the sections making whipping the punishment for remaining in the country, and susbti- tuting one requiring the arrest of such contumacious negroes, their trial before a justice of the peace, and if convicted, the hiring of the offenders to the person who should give bond to remove them out of the ter- ritory within the shortest space of time, paying himself out of their services. The law was in any case inop- erative for two years, during which time such changes had occurred in the territory as to do away with the motive for enforcing it.
At the December session an act was passed for erecting a jail at Oregon City with money from the estate of Ewing Young; the executive committee being required to appoint an administrator to close up the business of the estate, and collect debts due to it; and the government being pledged to pay all money so received to the lawful heirs of Young whenever
into Oregon, the owners of such slaves respectively shall have the term of 3 years from the introduction of such slaves to remove them out of the country. Sec. 3. That if such owners of slaves shall neglect or refuse to remove such slaves from the country within the time specified in the preceding section, such slaves shall be free. Sec. 4. That when any free negro or mulatto shall have come to Oregon, he or she, as the case may be, if of the age of 18 or upwards, shall remove from the country within the term of 2 years for males, and 3 for females, from the passage of this act; and that if any free negro or mulatto shall hereafter come to Oregon, if of the age aforesaid, he or she shall quit and leave the country within the term of 2 years for males, and 3 years for females, from his or her arrival in the country. Sec. 5. That if such free negro or mulatto be under the age aforesaid, the terms of time specified in the preceding section shall begin to run when he or she shall arrive at such age. Sec. 6. That if any such free negro or mulatto shall fail to quit the country, as required by this act, he or she may be arrested upon a warrant issued by some justice of the peace, and if guilty on trial before such justice, shall receive upon his or her bare back not less than 20 nor more than 39 stripes, to be inflicted by the constable of the proper county. Sec. 7. That if any free negro or mulatto shall fail to quit the country within the term of 6 months after receiving such stripes, he or she shall again receive the same punishment once in every 6 months, until he or she shall quit the country. Sec. 8. That when any slave shall obtain his or her freedom, the terms specified in the 4th section shall begin to run from the time when such freedom shall be obtained.'
440
LEGISLATIVE PROCEEDINGS.
they should appear to claim it. A lot for the erec- tion of the jail was offered by McLoughlin, and ac- cepted by the committee.21 An act was also passed for the protection of Indians in the free use of such pieces of vacant land as they then occupied with their villages or fisheries; and the executive was empow- ered to bring suit in the name of Oregon against persons infringing the rights of the natives to the peaceable possession of such lands.
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