USA > Oregon > History of Oregon, Vol. II, 1848-1888 > Part 16
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The hurried sessions of the territorial legislature had effected little improvement in the statutes which were still in great part in manuscript, consisting in many instances of mere reference to certain Iowa laws adopted without change. An act was passed for the printing of the laws and journals, and Asahel Bush elected printer, to the disappointment of Dryer of the Oregonian, who had built hopes on his political views which were the same as those of the new ap- pointees of the federal government. But the terri- torial secretary, Hamilton, literally took the law into his own hands and sent the printing to a New York contractor. Thus the war went on, and the laws were as far as ever from being in an intelligible state,15
printers, and in May 1851 Waterman purchased the entire interest, when he removed the paper to Portland, calling it the Times. It survived several subsequent changes and continued to be published till 1864, recording in the mean time many of the early incidents in the history of the country. Portland Oregonian, April 15, 1876.
14 The Spectator of Feb. 20, 1851, rebuked the assembly for its discour- tesy, saying it knew of no other instance where the annual message of the governor had been treated with such contempt.
15 The Spectator of August 8, 1850, remarked that there existed no law in the territory regulating marriages. If that were true, there could have ex- isted none since 1845, when the last change in the provisional code was made. There is a report of a debate on 'a bill concerning marriages,' in the Spectator of Jan. 2, 1851, but the list of laws passed at the session of 1850-1 contains none on marriage. A marriage law was enacted by the legislature of 1851-2.
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OREGON ARCHIVES.
although the most important or latest acts were pub- lished in the newspapers, and a volume of statutes was printed and bound at Oregon City in 1851. It was not until January 1853 that the assembly pro- vided for the compilation of the laws, and appointed L. F. Grover commissioner to prepare for publication the statutes of the colonial and territorial governments from 1843 to 1849 inclusive. The result of the com- missioner's labors is a small book often quoted in these pages as Or. Laws, 1843-9, of much value to the his- torian, but which, nevertheless, needs to be confirmed by a close comparison with the archives compiled and printed at the same time, and with corroborative events; the dates appended to the laws being often several sessions out of time, cither guessed at by the compiler, or mistaken by the printer and not corrected. In many cases the laws themselves are mere abstracts or abbreviations of the acts published in the Spec- tutor.16
Nor were the archives collected any more complete, as boxes of loose papers, as late as 1878, to my knowl- edge, were lying unprinted in the costly state-house at Salem. Many of them have been copied for my
Among men inclined from the condition of society to early marriages, as I have before mentioned, the wording of the donation law stimulated the desire to marry in order to become lord of a mile square of land, while it influenced women to the same measure, as it was only a wife or widow who was entitled to 320 acres. Many unhappy unions were the consequence, and numerons divorces. Deady's Ifi.t. Or., MIS., 33: Victor's New Penelope, 19-20.
16 Public Life in Oregon is one of the most scholarly and analytical contri- butions to history which I was able to gather during my many interviews of 1878. Besides being in a measure a political history of the country, it abounds with life-like sketches of the public men of the day, given in a clear and fluent style, and without apparent bias. L. F. Grover, the author, was born at Bethel, Maine, Nov. 29, 1823. He came to California in the winter of 1850, and to Oregon early in 1851. He was almost immediately appointed clerk of the first judicial district by Judge Nelson. He soon afterward received the appointment of prosecuting attorney of the second judicial district, and became deputy United States district attorney. through his law partner, B. F. Harding, who held that office. Thereafter for a long period he was in public life in Oregon. Grover was a protegé of Thurston, who had known him in Maine, and advised him when admitted to the bar in Philadelphia to go to Oregon, where he would take him into his own office as a law-partner; but Thurston dying, Grover was left to introduce himself to the new common- wealth, which he did most successfully. Grover's Pub. Life in Or., MS., 100-3; Yreku Union, April 1, 1870.
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ADMINISTRATION OF GAINES.
work, and constitute the manuscript entitled Oregon Archives, from which I have quoted more widely than I should have done had they been in print, thinking thus to preserve the most important information in them. The same legislature which authorized Grover's work, passed an aet ereating a board of commissioners to prepare a code of laws for the territory,17 and eleeted J. K. Kelly, D. R. Bigelow, and R. P. Boise, who were to meet at Salem in February, and proceed to the discharge of their duties, for which they were to re- ceive a per diem of six dollars.18 In 1862 a new code of civil procedure was prepared by Matthew P. Deady, then United States district judge, A. C. Gibbs, and J. K. Kelly, and passed by the legislature. The work was performed by Judge Deady, who attended the session of the legislature and secured its passage. The same legislature authorized him to prepare a penal code and code of criminal procedure, which he did. This was enacted by the legislature of 1864, which also authorized him to prepare a compilation of all the laws of Oregon then in force, including the codes, in the order and method of a code, which he did, and en- riched it with notes containing a history of Oregon legislation. This compilation he repeated in 1874, by authority of the legislature, aided by Lafayette Lane.
Meanwhile the work of organization and nation- making went on, all being conducted by these early legislators with fully as much honesty and intelligence as have been generally displayed by their successors. Three new counties were established and organized at the session of 1850-1, namely: Pacific, on the north side of the Columbia, on the coast; Lane, including
17 A. C. Gibbs in his notes on Or. Hist., MS., 13, says that he urged the measure and succeeded in getting it through the house. It was supported by Dendy, then president of the council; and thus the code system was begun in Oregon with reformed practice and proceedings. At the same time, Thurs- ton, it is said, when in Washington, advised the appointment of commis- sioners for this purpose, or that the assembly should remain in session long enough to do the work, and promised to secure from congress the money, $6,000, to pay the cost.
16 Or. Statutes, 1852-3, 57-8; Or. Statesman, Feb. 5, 1853.
19 See Or. Gen. Laws, 1843-72.
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COUNTIES AND JUDICIAL DISTRICTS.
all that portion of the Willamette Valley south of Benton and Linn;20 and Umpqua, comprising all the country south of the Calapooya mountains and head- waters of the Willamette. County seats were located in Linn, Polk, and Clatsop, the county seats of Clack- amas and Washington having been established at the previous sessions of the legislature.21
The act passed by the first legislature for collecting the county and territorial revenues was amended; and a law passed legalizing the acts of the sheriff of Linn county, and the probate court of Yamhill county, in the collection of taxes, and to legalize the judicial proceedings of Polk county; these being cases where the laws of the previous sessions were found to be in conflict with the organic act. Some difficulty had been encountered in collecting taxes on land to which the occupants had as yet no tangible title. The same feeling existed after the passage of the donation law, though some legal authorities contended, and it has since been held that the donation aet gave the occu- pant his land in fee simple, and that a patent was only evidence of his ownership.22 But it took more time to settle these questions of law than the people or the legislature had at their command in 1850; hence conflicts arose which neither the judicial nor
20 Eugene City Guard, July 8, 1876; Eugene City State Journal, July 8, 1876.
21 It is difficult determining the value of these cnactments, when for sev- eral sessions one after the other acts with the same titles appear-instance the county seat of Polk county, which was located in 1849 and again in 1850. 22 Deculy's Scrap Book, 5. For some years Matthew P'. Deady employed bis leisure moments as a correspondent of the San Francisco Bulletin, his subjects often being historical and biographical matter, in which he was, from his habit of comparing evidence, very correct, and in which he sometimes enun- ciated a legal opinion. His letters, collected in the form of a scrap-hook, were kindly loaned to me. From these Scraps I have drawn largely; and still more frequently from his History of Oregon, a thick manuscript volume given to me from his own lips in the form of a dictation while I was in Port- I. nd in 1878, and taken down by my stenographer. Never in the course of my life have I encountered in one mind so vast, well arranged, and well digested a store of facts, the recital of which to me was a never failing source of wonder and admiration. His legal decisions and public addresses have also been of great assistance to me, being free from the injudicial bias of many authors, and hence most substantial material for history to rest upon. Further than this, Judge Deady is a graceful writer, and always interesting. As a man, he is one to whom Oregon owes much.
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ADMINISTRATION OF GAINES.
the legislative branches of the government could at once satisfactorily terminate.
The legislature amended the act laying out the judicial districts by attaching the county of Lane to the first and Umpqua to the second districts. This distribution made the first district to consist of Clack- amas, Marion, Linn, and Lane; the second of Wash- ington, Yamhill, Benton, Polk, and Umpqua; and the third of Clarke, Lewis, and Clatsop. Pacific county was not provided for in the amendment. The judges were required to hold sessions of their courts twice annually in each county of their districts. But lest in the future it might happen as in the past, any one of the judges was authorized to hold special terms in any of the districts; other laws regulating the practice of the courts were passed,23 and also laws regulating the general elections, and ordering the erection of court-houses and jails in each county of the territory.
They amended the common school law, abolishing the office of superintendent, and ordered the clection of school examiners; incorporated the Young Ladies' Academy of Oregon City, St Paul's Mission Female Seminary, the First Congregational Society of Port- land, the First Presbyterian Society of Clatsop plains; incorporated Oregon City and Portland; lo- cated a number of roads, notably one from Astoria to the Willamette Valley,24 and a plank-road from Portland to Yamhill county; and also the Yamhill Bridge Company, which built the first great bridge in the country. These, with many other less impor- tant acts, occupied the assembly for sixty days. Thurston's advice concerning memorializing congress
23 Or. Gen. Laws, 1850-1, 158-164.
24 This was a scheme of Thurston's, who, on the citizens of Astoria peti- tioning congress to open a road to the Willamette, proposed to accept 810,000 to build the bridges, promising that the people would build the road. He then advised the legislature to go on with the location, leaving it to him to manage the appropriations. Lane finished his work in congress, and a gov- ernment officer expended the appropriation without benefiting the Astorians beyond disbursing the money in their midst. See 31st Cong., 1st Sess., II. Com. Rept., 348, 3.
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A NEW DELEGATE.
to pay the remaining expenses of the Cayuse war was acted upon, the committee consisting of McBride, Parker, and Hall, of the council, and Deady, Simpson, and Harding of the house.25 Nothing further of im- portance was done at this session.
When the legislative assembly adjourned in Feb- ruary, it was known that Thurston was returning to Oregon as a candidate for reelection, and it was ex- pected that there would be a heated canvass, but that his party would probably carry him through in spite of the feeling which his course with regard to the Oregon City claim had created. But the unlooked for death of Thurston, and the popularity of Lane, who, being of the same political sentiments, and gen- erously willing to condone a fault in a rival who had confirmed to him as the purchaser of Abernethy Isl- and a part of the contested land claim, made the ex-governor the most fitting substitute even with Thurston's personal friends, for the position of dele- gate from Oregon. Some efforts had been made to injure Lane by anonymous letter-writers, who sent to the New York Tribune allegations of intemperance and improper associations,26 but which were sturdily repelled by his democratic friends in public meetings, and which could not have affected his position, as Gaines was appointed in the usual round of office-giv- ing at the beginning of a new presidential and party administration. That these attacks did not seriously injure him in Oregon was shown by the enthusiasm with which his nomination was accepted by the ma- jority, and the result of the election, as well as by the fact of a county having been named after him between his removal as governor and nomination as delegate. The only objection to Lane, which seemed to carry any weight, was the one of being in the territory
23 32d C'ong., 1st Sess., II. Jour., 1050, 1224.
26 The writer signed himself 'Lansdale,' but was probably J. Quinn Thorn- ton, who admits writing such letters to get Lane removed, but gives a different sobriquet as I bave already mentioned -that of ' Achilles de Harley.'
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ADMINISTRATION OF GAINES.
without his family, which gave a transient air to his patriotism, to which people objected. They felt that their representative should be one of themselves in fact as well as by election, and this Lane declared his intention of becoming, and did in fact take a claim ou the Umpqua River to show his willingness to become a citizen of Oregon. The opposing candidate was W. H. Willson, who was beaten by eighteen hundred or two thousand votes. As soon as the election was over, Lane returned to the lately discovered mining districts in southern Oregon, taking with him a strong party, intending to chastise the Indians of that sec- tion, who were becoming more and more aggressive as travel in that direction increased, and their profits from robbery and murder became more important. That he should take it upon himself to do this, when there was a regularly appointed superintendent of Indian affairs-for Thurston had persuaded congress to give Oregon a general superintendent for this work alone-surprised no one, but on the contrary appeared to be what was expected of him from his aptitude in such matters, which became before he reached Rogue River Valley wholly a military affair. The delegate- elect was certainly a good butcher of Indians, who, as we have seen, cursed them as a mistake or damnable infliction of the Almighty. And at this noble occu- pation I shall leave him, while I return to the history of the executive and judicial branches of the Oregon government.
Obviously the tendency of office by appointment instead of by popular election is to make men indiffer- ent to the opinions of those they serve, so long as they are in favor with or can excuse their acts to the ap- pointing power. The distance of Oregon from the seat of general government and the lack of adequate mail service made the Gaines faction more than usu- ally independent of eensure, as it also rendered its crities more impatient of what they looked upon as an
155
CENSURE OF JUDGES.
exhibition of petty tyranny on the part of those who were present, and of culpable neglect on the part of those who remained absent. From the date of Judge Bryant's arrival in the territory in April 1849, to the Ist of January 1851, when he resigned, he had spent but five months in his district. From December 1848 to August 1850 Pratt had been the only judge in Oregon-excepting Bryant's brief sojourn. Then he went east for his family, and Strong was the only judge for the eight months following, and till the return about the last of April 1851 of Pratt, accom- panied by Chief Justice Thomas Nelson, appointed in the place of Bryant,27 and J. R. Preston, surveyor- general of Oregon.
The judges found their several dockets in a condi- tion hardly to justify Thurston's encomiums in con- gress upon their excellence of character. The freedom enjoyed under the provisional government, due in part to the absence of temptation, when all men were laborers, and when the necessity for mutual help and protection deprived them of a motive for violence, had ceased to be the boast and the security of the coun- try. The presence of lawless adventurers, the abun- dance of money, and the absence of courts, had tended to develop the criminal element, till in 1851 it became notorious that the causes on trial were oftener of a criminal than a civil nature.28
27 Memorial of the Legislative Assembly of 1851-2, in 32d Cong., 1st Sesx., II. Misc. Doc., ix. 2-3. Thomas Nelson was born at Peckskill, New York, January 23, 1819. He was the third son of William Nelson, a represen- tative in congress, a lawyer by profession, and a man of worth and public spirit. Thomas graduated at Williams college at the age of 17. Being still very young he was placed under a private tutor of ahility in New York city, that he might study literature and the French language. He also atten:lcd medical lectures, acquiring in various ways thorough culture and scholarship, after which he added European travel to his other sources of knowledge, finally adopting law as a profession. Advancing in the practice of the law, he became an attorney and counsellor of the supreme court of the United States, and was practising with his father in Westchester county, New York, when he was appointed chief justice of Oregon. Judge Nelson's private character was faultless, his manners courteous, and his bearing modest and refined. Livingston's Biog. Sketches, 69-72; S. R. Thurston, in Or. Spectator, April 10, 1851.
28 Strong's Hist. Or .. MS., 14. On the 7th of January 1831 William Ham- ilton was shot and killed near Salem by William Kendall on whose land claim
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ADMINISTRATION OF GAINES.
This condition of society encouraged the expression of public indignation pleasing to party prejudices and to the political aspirations of party leaders. At a meeting held in Portland April Ist, it was resolved that the president of the United States should be informed of the neglect of the judges of the first and seeond districts, no court having been held in Wash- ington county since the previous spring; nor had any judge resided in the district to whom application
he was living. A special term of court was held on the 28th of March to try Kendall, who was defended by W. G. T'Vault and B. F. Harding, convicted, sentenced by Judge Strong, and executed on the 18th of April, there being at the time no jail in which to confine criminals in Marion county. About the same time a sailor named Cook was shot by William Keenc, a gambler, in a dispute about a game of ten-pins. Keene was also tried before Judge Strong, convicted of manslaughter, and sentenced to six years in the penitea- tiary. As the jury had decided that he ought not to hang, and he could not be confined in an imaginary penitentiary, he was pardoned by the governor. Or. Statesman, May 16, 1851. Creed Turner a few months after stabbed and killed Edward A. Bradbury from Cincinnati, Ohio, out of jealonsy, both being in love with a Miss Bonser of Sauve Island. Deady defended him before Judge Pratt, but he was convicted and hanged in the autumn. Id., Oct. 28, 1851; Drady's Hist. Or., MS., 59. In Feb. 1852 William Everman, a desperate character, shot and killed Serenas C. Hooker, a worthy farmer of Polk county, for accusing him of taking a watch. He also was convicted and hauged. He had three associates in crime, Hiram Everman, his brother, who plead guilty and was sentenced to three years in the penitentiary: Enoch Smith, who escaped by the disagreement of the jury, was rearrested, tried again, sentenced to death, and finally pardoned; and David J. Coe, who by obtaining a change of venne was acquitted. As there was no prison where Hiramn Everman conld serve, he was publicly sold by the sheriff on the day of his brother's execution, to Theodore Prather, the highest bidder, and was set at liberty by the petition of his master just before the expiration of the three years. Smith took a land-claim in Lane county, and married. After several years his wife left him for some cause unknown. He shot himself in April 1877, intentionally, as it was believed. Salem Mercury, April IS, 1877. About the time of the former murder, Nimrod O'Kelly, in Benton county, killed Jere- miah Mahoney, in a quarrel about a land-claim. He was sentenced to the peui- teutiary and pardoned. In August, in Polk county, Adam E. Wimple, 35 years of age, murdered his wife, a girl of fourteen, setting fire to the house to conceal his crime. He had married this child, whose name was Mary Allen, ahont one year before. Wimple was a native of New York. S. F. Alta, Sept. 28, 1832. He was hanged at Dallas October S, 1852. Or. Statrs- man, Oct. 23, 1852. Robert Maynard killed J. C. Platt on Rogue River for ridienling him. He was executed by vigilants. Before the election of officers for Jackson county, one Brown shot another man, was arrested, tried before W. W. Fowler, temporarily elected judge, and hanged. Prim's Judic. Affairs in Southern Or., MS., 10. In July 1853, Joseph Nott was tried for the mur- der of Ryland D. Hill whom he shot in an affray in Umpqua county. He was acquitted. Many lesser crimes appear to have been committed, such as burglary and larceny; and frequent jail deliveries were effected, these struc- tures being built of logs and not guarded. In two years after the discovery of gold in California, Oregon had a criminal calender as large in proportion to the population as the older states.
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EXPULSION OF NEGROES.
could be made for the administration of the laws. The president should be plainly told that there were "many respectable individuals in Oregon capable of discharging the duties of judges, or filling any offices under the territorial government, who would either discharge their duties or resign their offices."29 The arrival of the new chief justice, and Pratt, brought a temporary quiet. Strong went to reside at Cathlamet, in his own district, and the other judges in theirs.
At the first term of court held in Clackamas county by Chief Justice Nelson, he was called upon to decide upon the constitutionality of the law excluding negroes from Oregon. This law, first enacted by the provis- ional legislature in 1844, had been amended, reenacted, and clung to by the law-makers of Oregon with sin- gular pertinacity, the first territorial legislature reviv- ing it among their earliest enactments. Thurston, when questioned in congress concerning the matter, defended the law against free blacks upon the ground that the people dreaded their influence among the Indians, whom they incited to hostilities. 30 Such a reason had indeed been given in 1844, when two dis- orderly negroes had caused a collision between white men and Indians, but it could not be advanced as a sufficient explanation of the settled determination of the founders of Oregon to keep negroes out of the territory, because all the southern and western fron- tier states had possessed a large population of blacks, both slave and free, at the time they had fought the savages, without finding the negroes a dangerous ele- ment of their population. It was to quite another cause that the hatred of the African was to be ascribed; namely, scorn for an enslaved race, which refused political equality to men of a black skin, and which might raise the question of slavery to disturb the peace of society. It was not enough that Oregon
29 Or. Statesman, April 11, 1851. Among those taking part in this meet- ing were W. W. Chapman, D. H. Lounsdale, H. D. O'Bryant, J. S. Smith, Z. C. Norton, S. Coffin, W. B. Otway, and N. Northrop.
80 Cong. Globe, 1849-50, 1079, 1091.
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ADMINISTRATION OF GAINES.
should be a free territory which could not make a bondsman of a black man, but it must exclude the remainder of the conflict then raging on his behalf in certain quarters. Judge Nelson upheld the constitu- tionality of the law against free blacks, and two of- fenders were given thirty days in which to leave the territory.31
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