USA > Oregon > History of Oregon, Vol. I, 1834-1848 > Part 47
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78
Mrs Henrietta Gilliam Coad, daughter of Cornelius Gilliam, and wife of Samuel Coad, died at Salem, March 30, 1875, aged about 32 years. Mrs Pauline Ford Boyle, third daughter of Nathaniel Ford, died in November 1874 of consumption. H. C. Jenkins, in alluding to her death, remarked that of the Ford family of 13 who crossed the plains in 1844 with him, only 2 were then left. Elijah Bunton died in 1861, on the Walla Walla River, during the gold excitement. His widow married a Mr Watson. Mrs Keziah Watson died March 19, 1874, at Weston, in Umatilla County. Mrs Mary Jane Roberts Rogers, wife of Clark Rogers, died March 4, 1875, aged 43 years. Portland P. C. Advocate, March 25, 1875.
CHAPTER XVIII.
AMENDMENT OF THE ORGANIC LAWS. 1845.
THE FIRST THREE LEGISLATIVE BODIES-OPPOSING PARTIES-THE SEVERAL LEGISLATURES-MEMORIAL TO CONGRESS-WHAT BENTON THOUGHT OF IT-ELIJAH WHITE'S EXPLOITS-PROCEEDINGS OF THE LEGISLATURE- FUSION OF THE AMERICANS AND BRITISH-ENGLISH SPIES IN OREGON- BRITISH VESSELS-CONDUCT OF McLOUGHLIN DISCUSSED-UNJUST CEN- SURE-CONSEQUENCE TO McLOUGHLIN.
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 na- tionalities 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 educa- tion, and replacing them by personal esteem and pri- vate friendships.1
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, with- out 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
1 Applegate's Views, MS., 42.
(470 )
471
THE MISSIONARY REPUBLIC.
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 con- tracted 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 conven- tion. 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.2
Although there were but two prominent parties, the American and the independent, the latter includ- ing the Canadians and those who desired a constitu- tion,8 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.
2 Clyman's Diary, MS., 98; McLoughlin's Private Papers, MS., 2d ser., 14. 3 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
472
AMENDMENT OF THE ORGANIC LAWS.
Bailey, who was known to lean toward independence, yet was also of the old missionary fraternity, belonged to no particular party. In convention Lovejoy re- ceived 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,4 who thus became governor, although at the time he was on a visit to the Sandwich Islands.5
One of the principles of the American party was that the organic law of 1843 was the law of the coun- try 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 oppo- sition 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 1844.6
The legistators elect from Champoeg County7 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.
+ 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. 5 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 can- didate of the convention. Both Russell and Bailey would prefer Abernethy to one of the new and aggressive men of the immigrations, and their influ- ence, combined with that of the Mission which also announced its candidates as American, elected him.
6 Or. Archives, MS., 51.
" It will be observed that the word ' county ' had been substituted for dis- trict. This usage was introduced by the committee of 1844; but the legis- lature of 1845 passed an act authorizing the change. Or. Laws, 1843-9, 35. In the same manner the phrase 'legislative committee ' was altered to 'legis- lature,' though there were those who objected to both changes.
473
THE LEGISLATURE.
McCarver, Isaac W. Smith, David Hill; from Yam- hill County, Jesse Applegate, Abijah 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 adminis- tered 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.8 This clause gave offence to some Americans, who, now that their coun- trymen 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.9
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 agri- culture, 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 en- danger our unanimity ;" with the hope that there was sufficient virtue and intelligence in the colony to secure
8 This form of oath, Gray says, shows that Newell, Foisy, McCarver, Gar- rison, 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.
9 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.
474
AMENDMENT OF THE ORGANIC LAWS.
the administration of the laws of the provisional gov- ernment.10
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 com- posed 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 sim- plicity and fidelity to trust which distinguished him among his fellow-colonists is stamped upon their pro- ceedings. 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.11
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
10 Or. Archives, MS., 51. While at Salem in 1878 I found in the state- house 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 discre- tion. This he did with a faithfulness and discrimination worthy of the highest praise. The volume is quoted as above.
11 Views of History, MS., 45.
475
THE SEVERAL ARTICLES.
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,12 and another section concerning the powers of three distinct branches of the govern- ment. 13
The second article defined, in eleven sections, the powers and duties of the separate branches of govern- ment. 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 ex- ecutive 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
12 ' 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 for 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.
13 ' 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 belong- ing to either of the others, except in cases herein directed or permitted.' Id.
476
AMENDMENT OF THE ORGANIC LAWS.
representatives should have power to divide the ter- ritory into suitable districts, and apportion the rep- resentation 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 grant- ing 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 in- troduction, 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.14
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 privi- leged 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-
14 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 Huason'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 or- ganic, as well as the oath of office.
477
THE LAND LAW.
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.15 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. Un- like 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 juris- diction 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 dis- tinction 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
15 Governor Abernethy drew no salary under the provisional government.
478
AMENDMENT OF THE ORGANIC LAWS.
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 claim- ants in the cases of those already in possession, and within twenty days in the cases of new-comers. Per- manent 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 busi- ness 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 partner- ships 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.16 Any person complying with the provisions of these ordinances became entitled to tlfe same re- course 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 ap- prove of them.17
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-
16 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.
17 Or. Spectator, Feb. 5, 1846; Gen. Laws Or., 58-65.
479
APPROVED BY THE PEOPLE.
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 alle- giance to the United States, which alone of all great governments allowed such entire freedom of political sentiments. 18
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, Ist, 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 offi- cers 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 forma- tion 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 legis- lature 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. Not- withstanding 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 sched- ule of officers as elected the previous June, amounted to over two hundred.19 By this decisive act, says Mr Applegate, "both the Methodist Mission and the
18 Says Applegate: 'I was a citizen of the United States, and I intended to remain one.
19 Grover's Or. Archives, 90; Hines' Or. Hast., 432-4.
480
AMENDMENT OF THE ORGANIC LAWS.
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." 20
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 con- ciliate 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 sup- planted by Ermatinger, a British subject; but the legislature sustained Ermatinger.21 Two days before adjournment Gray offered a resolution that a com- mittee 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 mili- tary 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,22 and to prevent abuses of the legislative power generally.
20 Views of History, MS., 46.
21 Grover's Or. Archives, 73-7.
22 ' 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
481
MEMORIAL TO CONGRESS.
Early in the session Gray made a motion that a committee be appointed to draught a memorial and peti- tion 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.23 There was
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.'
23 'To the honorable the Senate and House 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 com- mercial 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 govern- ments 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.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.