USA > Oregon > History of Oregon, Vol. II, 1848-1888 > Part 27
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265
ATTITUDE OF CONGRESS.
the county of Clackamas, which tribunal congress had adopted as a territorial court of the United States. The permanent judicial power provided for in the or- ganic act was not in force, or had not superseded the temporary courts, because it had not at that time en- tered upon the discharge of its duties, Chief Justice Bryant not assuming the judicial ermine in Oregon until the 23d of May 1849, the cases in question oc- curring in March.2 To the point attempted to be made later, that there had been no court because of the ir- regularity of the judges in convening it, he replied that the court itself did not cease to exist, after being established, because there was no judge to attend to its duties, the clerk continuing in office and in charge of the records.8
There had been a contest immediately after the es- tablishment of the territorial government concerning the right of the foreign residents to vote at any elec- tion after the first one, for which the organic act had distinctly provided, and a strong effort had been made to declare the alien vote of 1849 illegal. The first territorial legislature, in providing for and regulating general elections and prescribing the qualifications of voters, declared that a foreigner must be duly natu- ralized before he could vote, the law being one of those adopted from the Iowa statutes. One party, of whom Thurston was the head, supported by the missionary interest, strenuously insisted upon this construction of the 5th section of the organic law, because at the election which made Thurston delegate the foreign- born voters had not supported him, and with him the measures of the missionary class.
The opinion of the United States judges being
2 In Pratt's opinion on the location of the seat of government, he reiterates this belief, and says that both he and Bryant held that 'no power existed hy which the supreme court could be legally held before the seat of government was established.' Or. Statesman, Jan. 6, 1852. According to this belief, the proceedings of the district courts were illegal for nearly two years.
3 Or. Spectator, May 22, 1851.
266
LAND LAWS AND LAND TITLES.
asked, Strong replied to a letter of Thurston's, con- firming the position taken by the delegate, that after the first election, until their naturalization was com- pleted, no foreigner could be allowed to vote.4 The inference was plain; if not allowed to vote, not a citi- zen; if not a citizen, not entitled to the benefits of the land law. Thurston also procured the expression of a similar opinion from the chairman of the judiciary of the house of representatives, and from the chairman of the committee on territories, which he had pub- lished in the Spectator. Under these influences, the legislature of 1850-1 substantially reenacted the Iowa law adopted in 1849, but Deady succeeded in procuring the passage of a proviso giving foreigners who had resided in the country five years prior to that time, and who had declared, as most of them had, their intention of becoming citizens, a right to vote.5
The Thurston interest, asserting that congress had not intended to invest the foreign-born inhabitants of Oregon with the privileges of citizens, declared that it was not necessary that the oath to support the gov- ernment of the United States and the organic act should be taken before a court of record, but might for such purpose be done before a common magistrate. Could they delude the ignorant into making this error, advantage could be taken of it to invalidate subsequent proceedings. But Pratt pointed out that while part of the proceedings, namely, the taking of the oath re- quired, could have been done before a magistrate, the declaration of intention to become a citizen could only be made according to the form and before the court prescribed in the naturalization laws; and that the act of congress setting forth what was necessary to be done to become entitled to the right to vote at the first election in Oregon did not separate them-from
4 Or. Spectator, Nov. 28, 1850.
5 Deady says he had a 'hard fight.' The proviso was meant, and was understood to mean, the restoration to McLoughlin, and the British subjects who had always lived in the country, of the elective franchise. Hist. Or., MS., 81.
267
LEGISLATIVE ACTION.
which it was plain that congress meant to confer upon the alien population of Oregon the privileges of citi- zenship without delay, and to cement the population of the territory as it stood when it asked that its pro- visional laws should be adopted.
The meaning of the 5th section of the organic act should have been plain enough to any but prejudiced minds. In the first place, it required the voter to be a male above the age of twenty-one years, and a resi- dent of the territory at the time of the passage of the act. The qualifications prescribed were, that he should be a citizen of the United States of that age, or that being twenty-one he should have declared on oath his intention to become a citizen, and have taken the oath to support the constitution of the United States and the provisions of the organic act. This gave him the right to vote at the first election, and made him eligible to office; but the qualifications of voters and office-holders at all subsequent elections should be prescribed by the legislative assembly. This did not mean that the legislature should enact laws contrary to this which admitted to citizenship all those who voted at the first election, by the very terms required, namely, to take the oath of allegiance and make a declaration of an intention to assume the duties of an American citizen; but that after having set out on its territorial career under these conditions, it could make such changes as were found necessary or desirable thereafter not in conflict with the organic act. The proof of this position is in the fact that after and not before giving the legislature the priv- ilege, comes the proviso containing the prescribed qualifications of a voter which must go into the ter- ritorial laws, the same being hose which entitled any white man to vote at the first election. Having once taken those obligations which were forever to make him a citizen of the United States by the organic act, the legislature had no right, though it exercised the assumed power, to disfranchise those who voted
268
LAND LAWS AND LAND TITLES.
at the first election. When in 1852-3 the legislature amended the laws regulating elections, it removed in a final manner the restrictions which the Thurston democracy had placed upon foreign-born residents of the country. By the new law all white male inhab- itants over twenty-one years of age, having become naturalized, or having declared their intention to become citizens, and having resided six months in the territory, and in the county fifteen days next preced- ing the election, were entitled to vote at any election in the territory.
To return to the donation law and its construction. Persons could be found who were doubtful of the meaning of very common words when they came to see them in a congressional act, and who were unable to decide what 'settler' or 'occupant' meant, or how to construe 'improvement' or 'possession.' To help such as these, various legal opinions were submitted through the columns of newspapers; but it was gen- erally found that a settler could be absent from his claim a great deal of his time, and that occupation and improvement were defined in accordance with the means and the convenience of the claimant.6
The surveyor-general, who arrived in Oregon in time to begin the surveys of the public lands in Oc- tober, 1851, had before him a difficult labor." The survey of the Willamette meridian was begun at
6 See Home Missionary, vol. 24, 156. Thornton held that there was such a thing as implied residence, and that a man might be a resident by the res- idence of his agent; and cited Kent's Com., 77. Also that a claimant whose dwelling was not on the land, but who improved it by the application of his personal labor, or that of his hired man, or member of his family, could demand a patent at the expiration of four years. See opinion of J. Q. Thornton in Or. Spectator, Jan. 16, 1851. It is significant that in these discussions and opinions in which Thornton took a prominent part at the time, he laid no claim to the authorship of the land law. To do this was an afterthought. Mrs Odell, in her Biogrophy of Thurston, MS., 28, remarks upon this.
1 Cong. Globe, app., 1852-3, vol. xxvii. 331, 32d cong. 2d sess .; U. S. H. Ex. Doc. 2, vol. ii. pt iii. 5-8, 32d cong. Ist sess. The survey was con- ducted on the method of base and meridian lines, and triangulations from fixed stations to all prominent objects within the range of the theodolite, by means of which relative distances were obtained, together with a general knowledge of the country, in advance of the linear surveys. Id.
269
SETTLERS AND SURVEYS.
the upper mouth of the Willamette River, and the base line 73 miles south, in order to avoid the Co- lumbia River in extending the base line east to the Cascade Mountains. The intersection of the base and meridian lines was 32 miles west of the Wil- lamette. The reason given for fixing the point of beginning at this place was because the Indians were friendly on either side of the line for some distance north and south, and a survey in this locality would best accommodate the immediate wants of the set- tlers.8 But it was soon found that the nature of the country through which the initial lines were run would make it desirable in order to accommodate the settlers to change the field of operations to the inhabited valleys, three fourths of the meridian line north of the base line passing through a coun- try broken and heavily timbered. The base line east of the meridian to the summit of the Cascade Mountains also passed through a densely timbered country almost entirely unsettled. But on the west side of the meridian line were the Tualatin plains, this section of the country being first to be benefited by the survey.
On the 5th of February, 1852, appeared the first notice to settlers of surveys that had been completed in certain townships, and that the surveyor general was prepared to receive the notifications of their re- spective claims and to adjust the boundaries thereof, he being made the arbiter and register of all donation claims.10 At the same time settlers were advised that they must have their claims surveyed and cor-
8 Rept of Preston in U. S. H. Ex. Doc. 52, 1851-2, v. 23, 31st cong. Ist sess. It was done by Thurston's advice. See Cong. Globe, 1849-50, xxi. pt ii. 1077, 31st cong. Ist sess.
9 William Ives was the contractor for the survey of the base line and Wil- lamette meridian north of it; and James Freeman of the Willamette me- ridian south of it, as far as the Umpqua Valley.
10 The first surveys advertised were of township 1 north, range 1 east; townships 7 and 8 south, range 1 west; and township 7 south, range 3 and 4 west. The oldest patents issued for donation claims are those in Washington county, unless the Oregon City lots may be older. See Or. Spectator, Feb. 10, 1852.
270
LAND LAWS AND LAND TITLES.
ners established before the government survey was made, in order that they might be able to describe their boundaries by courses, distances, metes, and bounds, and to show where their lines intersected the government lines, claims being generally bounded according to the fancy or convenience of the owner, instead of by the rectangular method adopted in the publie surveys.
The privilege of retaining their claims as they had taken them was one that had been asked for by me- morial, but which had not been granted without qual- ification in the land law. Thurston had explained how the letter of the law was to be evaded, and had predicted that the surveyor general would be on the side of the people in this matter.11 Preston, as had been foreseen, was lenient in allowing irregular boun- daries; a map of that portion of Oregon covered by donation claims presenting a curious patchwork of parallelograms with angles obtuse, and triangles with angles of every degree. Another suggestion of the surveyor general was that settlers on filing their no- tifications, date of settlement, and making proof of citizenship, should state whether they were married; 12 for in the settlement of Oregon and the history of its division among the inhabitants, marriage had been made to assume unusual importance. Contrary to all precedent, the women of this remote region were placed by congress in this respect upon an equality with the men-it may be in acknowledgment of their having earned in the same manner and measure a right to be considered creditors of the government, or the men may have made this arrangement that they through their wives might control more land. It had, it is true, limited this equality to those who were mar- ried, or had been married on starting for Oregon,13
11 Letter to the Electors of Oregon, 8.
12 Portland Oregonian, Feb. 7, 1852.
13 ' As respects grants of land, they will be placed upon the same footing as male citizens, provided that such widows were in this country before De-
271
WOMEN AND CHILDREN.
but it was upon the presumption that there were no unmarried women in Oregon, which was near the truth. Men took advantage of the law, and to be able to lord it over a mile square of land married girls no more than children, who as soon as they became wives were entitled to elaim half a section in their own right;14 and girls in order to have this right married without due consideration.
Congress had indeed, in its effort to reward the set- tlers of Oregon for Americanizing the Pacific coast, refused to consider the probable effects of its bounty upon the future of the country, though it was not un- known what it might be.15 The Oregon legislature, notwithstanding, continued to ask for additional grants and favors; first in 1851-2, that all white American women over eighteen years of age who were in the territory on the Ist of December 1850, not provided for in the donation act, should be given 320 acres of land; and to all white American women over twenty- one who had arrived in the territory or might arrive between the dates of December 1, 1850, and Decem- ber 1, 1853, not provided for, 160 acres; no woman to receive more than one donation, or to receive a patent until she had resided four years in the terri- torv.
It was also asked that all orphan children of white parents, residing in the territory before the 1st of December, 1850, who did not inherit under the act,16
cember 1, 1850, and are of American birth.' Or. Spectator, May 8, 1851. Thurston in his Letter to the Electors remarks that this feature of the dona- tion act was a popular one in congress, and that he thought it just.
1+ It has been decided that the words 'single man' included an unmarried woman. 7 Wall., 219. See Deady's Gen. Laws Or., 1843-72. But I do not see how under that construction a woman could be prevented holding as a 'single man' first and as a married woman afterward, because the patent to her husband, as a married man, would include 640 acres, 320 of which would be liers.
15 'They said it would be injurious to the country schools, by preventing the country from being thickly settled; that it would retard the agricultural growth of the country; and though it would meet the case of many deserv- ing men, it would open the door to frauds and speculations by all means to be avoided.' Thurston's Letter to the Electors of Oregon, 8; Beadle's Undev. West, 762-3; Home Missionary, vol. 26. p. 45.
16 Those whose parents had died in Oregon before the passage of the law
272
LAND LAWS AND LAND TITLES.
should be granted eighty acres each; and that all orphan children whose parents had died in coming to or after arriving in Oregon between 1850 and 1853 should receive forty acres of land each.17
Neither of these petitions was granted18 at the time, while many others were offered by resolution or otherwise. As the period was expiring when lands would be free, it began to be said that the time should be extended, even indefinitely, and that all lands should be free.19
There was never, in the history of the world, a better opportunity to test the doctrine of free land, nor anything that came so near realizing it as the set- tlement of Oregon. Could the government have re- stricted its donations to the actual cultivators of the soil, and the quantity to the reasonable requirements of the individual farmer, the experiment would have been complete. But since the donation was in the nature of a reward to all classes of emigrants alike, this could not be done, and the compensation had to be ample.
Some persons found it a hardship to be restrained from selling their land for a period of four years, and preferred paying the minimum price of $1.25 an acre to waiting for the expiration of the full term. Accordingly, in February 1853, the donation law was so amended that the surveyor-general might receive
did not come under the requirements of the donation act; nor those whose parents had died upon the road to Oregon. As they could not inherit, a di- rect grant was asked.
11 Or. Statesman, Dec. 16, 1851.
18 Heirs of settlers in Oregon who died prior to Sept. 27, 1850, cannot in- herit or hold land by virtue of the residence and cultivation of their ances- tors. Ford vs Kennedy, 1 Or. 166. The daughter of Jason Lee was portion- less, while the children of later comers inherited.
19 See Or. Statesman, Nov. 6, 1853. A resolution offered in the assembly of 1852-3 asked that the land east of the Cascade mountains should be im- mediately surveyed, and sold at the minimuin price, in quantities not exceed- ing 640 acres to each purchaser; the money to be applied to the construction of that portion of the contemplated Pacific railroad west of the Rocky Moun- tains. This was the first practical suggestion of the Oregon legislature con- ceruing the overland railroad, and appropriated all or nearly all the land in Oregon to the use of Oregon, the western portion except that north of the Columbia being to a great extent claimed.
273
WORKINGS OF THE LAW.
this money after two years of settlement in lieu of the remaining two years, the rights of the claimant in the event of his death to descend to his heirs at law as before. By the amendatory act, widows of men who had they lived would have been entitled to claim under the original act were granted all that their husbands would have been entitled to receive had they lived,20 and their heirs after them.
By this act also the extent of all government res- ervations was fixed. For magazines, arsenals, dock- yards, and other public uses, except for forts, the amount of land was not to exceed twenty acres to each, or at one place, nor for forts more than 640 acres.21 If in the judgment of the president it should be necessary to include in any reservation the improve- ments of a settler, their value should be ascertained and paid. The time fixed by this act for the expira- tion of the privileges of the donation law was April 1855, when all the surveyed public lands left unclaimed should be subject to public sale or private entry, the same as the other public lands of the United States.
The land law of Oregon was again amended in July 1854, in anticipation of the coming into market of the public lands, by extending to Oregon and Washington the preemption privilege granted September 4, 1841, to the people of the territories, to apply to any un- claimed lands, whether surveyed or not. For the convenience of the later settlers, the time for giving notice to the surveyor general of the time and place of settlement was once more extended to December 1855, or the last moment before the public lands be- came salable. The act of 1854 declared that the do- nations thereafter should in no case include a town site or lands settled upon for purposes of business or
20 See previous note 13. The surveyor general had before so construed the law.
21 This was a great relief to the immigration at The Dalles, where the mil- itary had taken up ten miles square of land, thereby greatly inconveniencing travellers by depriving their stock of a range anywhere near the usual place of embarkation on the Columbia.
HIST. OR., VOL. II. 18
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LAND LAWS AND LAND TITLES.
trade, and not for agriculture; but the legal subdivi- sions included in such town sites should be subject to the operations of the act of May 23, 1844, "for the relief of citizens of towns upon lands of the United States, under certain circumstances."22 The proviso to the 4th section of the original act, declaring void all sales of lands before the issue of the patents therefor, was repealed, and sales were declared invalid only where the claimant had not resided four years upon the land. By these terms two subjects which had greatly troubled the land claimants were disposed of; those who had been a long time in the country could sell their lands without waiting for the issuance of their patents, and those who had taken claims and laid out towns upon natural town-sites were left un- disturbed.23 This last amendment to the donation law granted the oft-repeated prayer of the settlers that the orphan children of the earliest immigrants who died before the passage of the act of September 27, 1850, should be allowed grants of land, the dona- tion to this class being 160 acres each. Under this amendment Jason Lee's daughter could claim the small reward of a quarter-section of land for her father's services in colonizing the country. These orphans' claims were to be set off to them by the sur- veyor general in good agricultural land, and in case of the decease of either of them their rights vested in the survivors of the family. Such was the land law as regarded individuals.
This act, besides, extended to the territory of Wash-
22 This act provided that when any of the surveyed public lands had been occupied as a town site, and was not therefore subject to entry under the ex- isting laws, in case the town were incorporated, the judges of the county court for that county should enter it at the proper land office, at the mini- mum price, for the several use and benefit of the occupants thereof according to their respective interests, the proceeds of the sales of lots to be disposed of according to rules and regulations prescribed by the legislature; but the land must be entered prior to the commencement of the public sale of the body of land in which the town site was included. See note on p. 72, Gen. Laus Or. 23 Many patents never issued. It was held by the courts that the law act- ually invested the claimant who had complied with its requirements with the ownership of the land, and that the patent was simply evidence which did not affect the title. Deady's Scraps, 5.
275
OREGON CITY CLAIM.
ington all the provisions of the Oregon land law, or any of its amendments, and authorized a separate corps of officers for this additional surveying distriet, whose duties should be the same as those of the surveyor general, register, and receiver of Oregon. It also gave two townships of land each to Oregon and Washington in lieu of the two townships granted by the original act to Oregon for university purposes.
Later, on March 12, 1860, the provisions of the aet of September 28, 1850, for aiding in reclaiming the swamp lands of Arkansas, were extended to Oregon, by which the state obtained a large amount of valua- ble lands, of which gift I shall have something to say hereafter.
From the abstract here given of the donation law at different periods, my reader will be informed not only of the bounty of the government, but of the onerous nature of the duties of the surveyor-general, who was to adjudicate in all matters of dispute or question concerning land titles. His instructions au- thorized and required him to settle the business of the Oregon City elaim by notifying all purchasers, donees, or assigns of lots or parts of lots acquired of MeLoughlin previous to March 4, 1849, to present their evidences of title, and have their land surveyed, in order that patents might be issued to them; and this in 1852 was rapidly being done.24
His special attention was directed to the third article of the treaty of 1846, between the United States and Great Britain, which provided that in the future appropriation of the territory south of 49° north latitude, the possessory rights25 of the Hudson's Bay
24 U. S. H. Ex. Doc. 52, v. 25, 32d cong. Ist sess.
25 This subject came up in a peculiar shape as late as 1871, when H. W. Corbett was in the U. S. senate. A case had to be decided in the courts of Oregon in 1870, where certain persons claimed under William Johnson, who before the treaty of 1846 settled upon a tract of land south of Portland. But Johnson died before the land law was passed, and the courts decided that in this case Johnson had first lost his possessory rights by abandoning the claim; by dying before the donation law was passed, he was not provided
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