USA > Oregon > History of Oregon, Vol. II, 1848-1888 > Part 17
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The judges found a large number of indictments in the first and second districts.32 The most important case in Yamhill county was one to test the legality of taxing land, or selling property to collect taxes, and was brought by C. M. Walker against the sheriff, Andrew Shuck, Pratt deciding that there had been no trespass. In the cases in behalf of the United States, Deady was appointed commissioner in chan- cery, and David Logan33 to take affidavits and acknowledgments of bail under the laws of congress. The law practitioners of 1850-1-2 in Oregon had the opportunity, and in many instances the talent, to stamp themselves upon the history of the common- wealth, supplanting in a great degree the men who were its founders,34 while endeavoring to rid the terri-
31 By a curious coincidence one of the banished negroes was Winslow, the culprit in the Oregon City Indian affair of 1844, who had lived since then at the mouth of the Columbia. Vanderpool was the other exile. S. F. Alta, Sept. 16, 1851; Or. Statesman, Sept. 2, 1851.
32 There were 30 indictments in Yamhill county alone, a large proportion being for breach of verbal contract. Six were for selling liquor to Indians, being federal cases.
33 Logan was born in Springfield, Ill., in 1824. His father was an eminent lawyer, and at one time a justice of the supreme court of Illinois. David im- migrated to Oregon in 1850 and settled at Lafayette. He ran against Deady for the legislature in 1851 and was beaten. Soon after he removed to Port- land, where he became distinguished for his shrewdness and powers of oratory, heing a great jury lawyer. He married in 1862 Mary P. Waldo, daughter of Daniel Waldo. His highly excitable temperament led him into excesses which injured his otherwise eminent standing, and cut short his brilliant career in 1874. Salem Mercury, April 3, 1874.
34 The practising attorneys at this time were A. L. Lovejoy, W. G. T'Vault, J. Quinn Thornton, E. Hamilton, A. Holbrook, Matthew P. Deady, B. F. Hard- ing, R. P. Boise, David Logan, E. M. Barnum, J. W. Nesmith, A. D. M. Harrison, James McCabe, A. C. Gibbs, S. F. Chadwick, A. B. P. Wood, T. McF. Patton, F. Tilford, A. Campbell, D. B. Brenan, W. W. Chapman, A. E. Wait, S. D. Mayre, John A. Anderson, and C. Lancaster. There were others who had been bred to a legal profession, who were at work in the mines or living on land claims, some of whom resumed practice as society became more organized.
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POLITICS AND SOCIETY.
tory of men whom they regarded as transient, whose places they coveted.
There is always presumably a coloring of truth to charges brought against public officers, even when used for party purposes as they were in Oregon. The democracy were united in their determination to see nothing good in the federal appointees, with the ex- ception of Pratt, who besides being a democrat had been sent to them by President Polk. On the other hand there were those who censured Pratt35 for being what he was in the eyes of the democracy. The governor was held36 equally objectionable with the judges, first on account of the position he had taken on the capital location question, and again for main- taining Kentucky hospitality, and spending the money of the government freely without consulting any one, and as his enemies chose to believe without any care for the public interests. A sort of gay and fashion- able air was imparted to society in Oregon City by the families of the territorial officers and the hospita- ble Dr McLoughlin,37 which was a new thing in the Willamette Valley, and provoked not a little jealousy among the more sedate and surly.38
35 W. W. Chapman for contempt of court was sentenced by Pratt to twenty days' imprisonment and to have his name stricken from the roll of attorneys. It was a political issue. Chapman was assisted by his Portland friends to escape, was rearrested, and on application to Judge Nelson discharged on a writ of error. 32d Cong., 1st Sess., Misc. Doc. 9, 3. See also case of Arthur Fayhie sentenced by Pratt for contempt, in which Nelson listened to a charge by Fayhie of misconduct in office on the part of Pratt, and discharged the prisoner by the advice of Strong.
36 An example of the discourtesy used toward the federal officers was given when the governor was bereaved of his wife by an accident. Mrs Gaines was riding on the Clatsop plains, whither she had gone on an excursion, which her horse becoming frightened at a wagon she was thrown under the wheels, receiving injuries from which she died. The same paper which announced her death attacked the governor with unstinted abuse. Mrs Gaines was a daughter of Nicholas Kincaid of Versailles, Ky. Her mother was Priscilla McBride. She was born March 13, 1800, and married to Gaines June 22, 1819. Or. Spectator, Aug. 19, 1851. About fifteen months after his wife's death, Gaines married Margaret B. Wands, one of the five lady teachers sent to Oregon by Gov. Slade. Or. Statesman, Nov. 27, 1851.
31 Mrs M. E. Wilson in Or. Sketches, MS., 19.
38 Here is what one says of Oregon City society at the time: All was oddity. 'Clergymen so cccentric as to have been thrown over by the board on account of their queerness, had found their way hither, and fought their way among peculiar people, into positions of some kind. People were odd
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ADMINISTRATION OF GAINES.
In order to sustain his position with regard to the location act, Gaines appealed for an opinion to the attorney-general of the United States, who returned for an answer that the legislature had a right to locate the seat of government without the consent of the governor, but that the governor's concurrence was necessary to make legal the expenditure of the appro- priations,39 which reply left untouched the point raised by Gaines, that the act was invalid because it em- braced more than one object. With regard to this matter the attorney-general was silent, and the quarrel stood as at the beginning, the governor re- fusing to recognize the law of the legislature as binding on him. His enemies ceased to deny the unconstitu- tionality of the law, admitting that it might prove void by reason of non-conformity to the organic act, but they contended that until this was shown to be true in a competent court, it was the law of the land; and to treat it as a nullity before it had been disap- proved by congress, to which all the acts of the legis- lature must be submitted, was to establish a dangerous precedent, a principle striking at the foundation of all law and the public security.
Into this controversy the United States judges were necessarily drawn, the organic act requiring them to hold a term of court, annually, at the seat of government; any two of the three constituting a
in dress as well. Whenever one wished to appear well before his or her friends, they resurrected from old chests and trunks clothes made years ago. Now, as one costumer in one part of the world at one time, had made one dress, and another had made at another time another dress, an assembly in Oregon at this time presented to a new-comer, accustomed to only one fashion at once, a peculiar sight. Mrs Walker, wife of a missionary at Chimikane, near Fort Colville, having been Il years from her clothed sisters, on coming to Oregon City was surprised to find her dresses as much in the fashion as any of the rest of them.' Mrs Wilson, Or. Sketches, MS., 16, 17. Another says of the missionary and pioneer families: 'One lady who had been living at Clatsop since 1846 had a parasol well preserved, at least 30 years old, with a folding handle and an ivory ring to slip over the folds when closed. Another lady had a bonnet and shawl of nearly the same age which she wore to church. All these articles were of good quality. and an evidence of past fashion and respectability.' Manners as well as clothes go out of mode, and much of the oddity Mrs Wilson discovered in an Oregon assembly in Gov. Gaines' time was only manners out of fashion.
39 Or. Spectator, July 29, 1851; Or. Statesman, Aug. 5, 1851.
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OPPOSITION GOVERNMENTS.
quorum.40 On the first of December, the legislature- elect41 convened at Salem, as the capital of Oregon, except one councilman, Columbia Lancaster, and four representatives, A. E. Wait, W. F. Matlock, and D. F. Brownfield. Therefore this small minority organized as the legislative assembly of Oregon, at the territorial library room in Oregon City, was quali- fied by Judge Strong, and continued to meet and adjourn for two weeks. Lancaster, the single coun- cilman, spent this fortnight in making motions and seconding them himself, and preparing a memorial to congress in which he asked for an increase in the number of councilmen to fifteen; for the improve- ment of the Columbia River; for a bounty of one hundred and sixty acres of land to the volunteers in the Cayuse war; a pension to the widows and orphans of the men killed in the war; troops to be stationed at the several posts in the territory; protection to the immigration; ten thousand dollars to purchase a library for the university, and a military road to Puget Sound. 42
About this time the supreme court inet at Oregon City, Judges Nelson and Strong deciding to adopt
40 Or. Gen. Laws, 1845-1864, 71.
41 The council was composed of Matthew P. Deady, of Yamhill; J. M. Gar- rison, of Marion; A. L. Lovejoy, of Clackamas; Fred. Waymire, of Polk; W. B. Mealey, of Linn; Samuel Parker, of Clackamas and Marion; A. L. Humphrey, of Benton; Lawrence Hall, of Washington; Columbia Lancaster, of Lewis, Clark, and Vancouver counties. The house consisted of Geo. L. Curry, A. E. Wait, and W. T. Matlock, of Clackamas; Benj. Simpson, Wilie Chapman, and James Davidson, of Marion; J. C. Avery and Geo. E. Cole, of Benton; Luther White and William Allphin, of Linn; Ralph Wilcox, W. M. King, and J. C. Bishop, of Washington; A. J. Hembree, Samuel McSween, and R. C. Kinney, of Yamhill; Nat Ford and J. S. Holman of Polk; David M. Risdon, of Lane; J. W. Drew, of Umpqua; John A. Anderson and D. F. Brownfield of Clatsop and Pacific. Or. Statesman, July 4, 1851.
42 In style Lancaster was something of a Munchausen. 'It is true,'he says in his memorial, which must indeed have astonished congress, 'that the Columbia River, like the principles of civil and religious equality, with wild and unconquerable fury has burst asunder the Cascade and Coast ranges of mountains, and shattered into fragments the basaltic formations,' etc. 32d Cong., 1st Sess., H. Misc. Doc. 14, 1-5; Or. Stateman, Jan. 13, 1852. ‘ Ba- saltic formation' then became a sobriquet for the whig councilman among the Salem division of the legislature. The memorial was signed ' Columbia Lan- caster, late president pro tem. of the council, and W. T. Matlock, late speaker pro tem. of the house of representatives.'
HIST. OR., VOL. II. 11
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ADMINISTRATION OF GAINES.
the governor's view of the seat-of-government ques- tion, while Pratt, siding with the main body of the legislature, repaired to Salem as the proper place to hold the annual session of the United States court. Thus a majority of the legislature convened at Salem as the seat of government, and a majority of the su- preme court at Oregon City as the proper eapital; and the division was likely to prove a serious bar to the legality of the proceedings of one or the other.43 The majority of the people were on the side of the legislature, and ready to denounce the imported judges who had set themselves up in opposition to their representatives. Before the meeting of the legisla- tive body the people on the north side of the Colum- bia had expressed their dissatisfaction with Strong for refusing to hold court at the place selected by the county commissioners, according to an act of the legis- lature requiring them to fix the place of holding court until the county seat should be established. The place selected was at the claim of Sidney Ford, on the Chehalis River, whereas the judge went to the house of John R. Jackson, twenty miles distant, and sent a peremptory order to the jurors to repair to the same place, which they refused to do, on the ground that they had been ordered in the manner of slave-driving, to which they objected as unbecoming a judge and insulting to themselves. A public meeting was held, at which it was decided that the conduct of the judge merited the investigation of the impeaching power.44
The proceedings of the meeting were published about the time of the convening of the assembly, and a correspondence followed, in which J. B. Chapman
43 Francis Ermatinger being cited to appear in a case brought against him at Oregon City, objected to the hearing of the cause upon the ground that the law required a majority of the judges of the court to be present at the seat of government, which was at Salem. The chief justice said in substance: 'By the act of coming here we have virtually decided this question.' Or. Specta- tor, Dec. 2, 1851.
" The principal persons in the transactions of the indignation meeting were J. B. Chapman, M. T. Simmons, D. F. Brownfield, W. P. Dougherty, E. Sylvester, Thos. W. Glasgow, and James McAllister. Or. Statesman, Dec. 2, 1851.
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IN SESSION AT SALEM.
exonerated Judge Strong, declaring that the senti- ment of the meeting had been maliciously misrepre- sented; Strong replying that the explanation was satisfactory to him. But the Statesman, ever on the alert to pry into actions and motives, soon made it appear that the reconciliation had not been between the people and Strong, but that W. W. Chapman, who had been dismissed from the roll of attorneys in the second district, had himself written the letter and used means to procure his brother's signature with the object of being admitted to practice in the first dis- trict; the threefold purpose being gained of exculpa- ting Strong, undoing the acts of Pratt, and replacing Chapman on the roll of attorneys.45
A majority of the legislative assembly having con- vened at Salem, that body organized by electing Samuel Parker president of the council, and Richard J. White, chief clerk, assisted by Chester N. Terry and Thomas B. Micou. In the house of representatives William M. King was elected speaker, and Benjamin F. Harding chief clerk. Having spent several days in making and adopting rules of procedure, on the 5th of December the representatives informed the council of their appointment of a committee, consisting of Cole, Anderson, Drew, White, and Chapman, to act in conjunction with a committee from the council, to draft resolutions concerning the course pursued by the federal officers.46 The message of the representa- tives was laid on the table until the 8th. In the mean time Deady offered a resolution in the council that, in view of the action of Nelson and Strong, a memorial be sent to congress on the subject. Hall followed this resolution with another, that Hamil- ton, secretary of the territory, should be informed that the legislative assembly was organized at Salem, and that his services as secretary were required at the
45 Or. Statesman, Feb. 3, 1852.
" Ur. Council, Jour. 1851-2, 10.
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ADMINISTRATION OF GAINES.
place named, which was laid on the table. Finally, on the 9th, a committee from both houses to draft a memorial to congress was appointed, consisting of Curry, Anderson, and Avery, on the part of the representatives, and Garrison, Waymire, and Humph- rey, on the part of the council.47
Pratt's opinion in the matter was then asked, which sustained the legislature as against the judges. Rec- tor was then ordered to bring the territorial library from Oregon City to Salem on or before the first day of January 1852, which was not permitted by the federal officers. 49
The legislators then passed an act re-arranging the judicial districts, and taking the counties of Linn, Marion, and Lane from the first and attaching them to the second district.49 This action was justitied by the Statesman, on the ground that Judge Nelson had proclaimed that he should decree all the legislation of the session held at Salem null. On the other hand the people of the three counties mentioned, excepting a small minority, held them to be valid; and it was better that Pratt should administer the laws peace- fully than that Nelson should, by declaring them void, create disorder, and cause dissatisfaction. The latter was, therefore, left but one county, Clackamas, in which to administer justice. But the nullifiers, as the whig officials came now to be called, were not
47 Or. Council, Jour. 1851-2, 12-13. This committee appears to have been intended to draft a memorial on general subjects, as the memorial concerning the interference of the governor and the condition of the judiciary was drawn by a different committee.
48 The Statesman of July 3d remarked: 'The territorial library, the gift of congress to Oregon, became the property, to all intents and purposes, of the federal clique. who refused to allow the books to be removed to Salem, and occupied the library room daily with a librarian of the governor's appointing.' A full account of the affair was published in a little sheet called Vox Populi, printed at Salem, and devoted to legislative proceedings and the location question. The first number was issued on the 18th of December 1851. The standing advertisement at the head of the local column was as follows: 'The l'ox Populi will be published and edited at Salem, O. T., during the session of the legislative assembly by an association of gentlemen.' This little paper contained a great deal that was personally disagreeable to the federal officers.
49 Deady's Hist. Or., MS., 27-8; Strong's Hist. Or., MS., 62-3; Grover's Pub. Life in Or., MS., 53.
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LAWS ENACTED.
without their friends. The Oregonian, which was the accredited organ of the federal clique, was loud in condenmation of the course pursued by the legisla- tors, while the Spectator, which professed to be an in- dependent paper, weakly supported Governor Gaines and Chief Justice Nelson. Even in the legislative body itself there was a certain minority who protested against the acts of the majority, not on the subject of the location act alone, or the change in the judicial districts, leaving the chief justice one county only for his district, but also on account of the memorial to congress, prepared by the joint committee from both houses, setting forth the condition of affairs in the territory, and asking that the people of Oregon might be permitted to elect their governor, secretary, and judges.
The memorial passed the assembly almost by accla- mation, three members only voting against it, one of them protesting formally that it was a calumnious document. The people then took up the matter, pub- lie meetings being held in the different counties to approve or condemn the course of the legislature, a large majority expressing approbation of the assembly and censuring the whig judges. A bill was finally passed calling for a constitutional convention in the event of congress refusing to entertain their petition to permit Oregon to elect her governor and judges. This important business having been disposed of, the legislators addressed themselves to other matters. Lane was instructed to ask for an amendment to the land law; for an increase in the number of councilmen in proportion to the increase of representatives; to procure the immediate survey of Yaquina Bay and Umpqua River; to procure the auditing and payment of the Cayuse war accounts; to have the organic act amended so as to allow the county commissioners to locate the school lands in legal subdivisions or in frac- tions lying between claims, without reference to size or shape, where the sixteenth and thirty-sixth sec-
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ADMINISTRATION OF GAINES.
tions were already settled upon; to have the postal agent in Oregon50 instructed to locate post-offices and establish mail routes, so as to facilitate correspondence with different portions of the territory, instead of aiming to increase the revenue of the general govern- ment; to endeavor to have the mail steamship con- tract complied with in the matter of leaving a mail at the mouth of the Umpqua River, and to procure the change of the port of entry on that river from Scotts- burg to Umpqua City. Last of all, the delegate was requested to advise congress of the fact that the ter- ritorial secretary, Hamilton, refused to pay the legis- lators their dues; and that it was feared the money had been expended in some other manner.
Several new counties were created at this session, raising the whole number to sixteen. An act to create and organize Simmons out of a part of Lewis county was amended to make it Thurston county, and the eastern limits of Lewis were altered and defined.51 Douglas was organized out of Umpqua county, leav- ing the latter on the coast, while the Umpqua Valley constituted Douglas. The county of Jackson was also created out of the southern portion of the former Umpqua county, comprising the valley of the Rogue River,52 and it was thought the Shasta Valley. These two new countries were attached to Umpqua for judi- cial purposes, by which arrangement the Second Judi- cial district was made to extend from the Columbia River to the California boundary. 53
50 The postal agent was Nathaniel Coe, who was made the subject of invid- ious remark, being a presidential appointee.
51 The boundaries are not given in the reports. They were subsequently changed when Washington was sct off. See Or. Local Laws, 1851-2, 13-15, 30; New Tacoma North Pacific Coast, Dec. 15, 1879.
52 A resolution was passed by the assembly that the surveyor-general be required to take measures to ascertain whether the town known as Shasta Butte City ((Yreka) was in Oregon or not, and to publish the result of his observations in the Statesman. Or. Council, Jour. 1851-2, 53.
53 The first term of the United States district court held at the new court-house in Cyntheann was in October 1851. At this term James Mc- Cabe, B. F. Harding, A. B. P. Wood, J. W. Nesmith, and W. G. T'Vault were admitted to practice in the Second Judicial district. McCabe was appointed prosecuting attorney, Holbrook having gone on a visit to the
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LAWS AND MEMORIALS.
The legislature provided for taking the census in order to apportion representatives, and authorized the county commissioners to locate the election districts; and to act as school commissioners to establish com- mon schools. A board of three commissioners, Har- rison Linnville, Sidney Ford, and Jesse Applegate, was appointed to select and locate two townships of land to aid in the establishment of a university, ac- cording to the provisions of the act of congress of Sep- tember 27, 1850.
An act was passed, of which Waymire was the author, accepting the Oregon City claim according to the act of donation, and also creating the office of commissioner to control and sell the lands donated by congress for the endowment of a university; but it became of no effect through the failure of the assen- bly to appoint such an officer."4 Deady was the author of an act exempting the wife's half of a donation claim from liability for the debts of the husband, which was passed, and which has saved the homesteads of many families from sheriff's sale.
Among the local laws were two incorporating the Oregon academy at Lafayette, and the first Methodist church at Salem.55 In order to defeat the federal
States. J. W. Nesmith was appointed master and commissioner in chancery, and J. H. Lewis commissioner to take hail. Lewis, familiarly known as 'Unele Jack,' came to Oregon in 1847 and settled on La Creole, on a farm, later the property of John M. Seott, on which a portion of the town of Dallas is located. Upon the resignation of H. M. Weller, county clerk, in August 1851, Lewis was appointed in his place, and subsequently elected to the. office by the people. His name is closely connected with the history of the. county and of Dallas. The first term of the district court held in any part, of southern Oregon was at Yonealla, in the autumn of 1852. Gibbs' Notes, MS., 15. The first courts in Jackson county about 1851-2 were held by. justices of the peace called alcaldes, as in California. Rogers was the first, Abbott the second. It was not known at this time whether Rogue River Valley fell within the limits of California or Oregon, and the jurisdiction being doubtful the miners improvised a government. See Popular Tribunals, vol. i., this series; Prim's Judicial Affairs, MS., 7-10; Jacksonville Dem. Times, April 8, 1871; Richardson's Mississippi, 407; Overland Monthly, xii. 225-30. Pratt left Oregon in 1856 to reside iu Cal. He had done substantial' pioneer work on the beneh, and owing to his conspicuous career he had been. criticised-doubtless through partisan feeling.
34 For aet sec Or. Statesman, Feb. 3, 1852.
55 Trustees of Oregon academy: Ahio S. Watt, R. P. Boise, James MeBride,. A. J. Hembree, Edward Geary, James W. Nesmith, Matthew P. Deady, R.
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ADMINISTRATION OF GAINES.
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