USA > Oregon > Multnomah County > Portland > History of Portland, Oregon : with illustrations and biographical sketches of prominent citizens and pioneers > Part 30
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admitted that governments derive their just powers from the consent of the governed,' then it was a government de jure. Emigrants who first settled Oregon, upon their arrival here, were without any political organization to protect themselves from foes without or to preserve peace within; and, therefore, self-preservation constrained them to establish a system of self-government. Congress knowing their necessities and withholding the customary provisions for such a case, tacitly acquiesced in the action of the people, and, on the fourteenth of August, 1848, expressly recognized its correctness and validity. No reason can be imagined for holding that the people of Oregon, in 1844, had no right to make such laws as their wants required; for where the functions of government have not been assumed or exercised by any other competent authority, it cannot be denied that such a power is inherent in the inhabitants of any country, isolated and separated as Oregon was from all other com- munities of civilized men. Some effort has been made to assimilate the laws in question to mere neighborhood agreements, but the argument seems to apply with equal force to the acts of all govern- ments established by the people."
Thus it will be seen that the infant city of Portland, though not under the protection of the laws of the United States in its earlier years, was, nevertheless, a part of an organized and existing political autonomy, and its inhabitants were bound by an intelligent system of laws which were valid and authoritative and administered by a regularly constituted tribunal.
Within the limits of the settlement at Portland there were no Courts during the time of the provisional government. There were several justices of the peace within the Tuality District, but they resided in the level country west of the Portland hills and far south- ward toward the Yamhill river. But in December, 1845, an act was
notes and references. Soon after, Mr. Simpson resigned from the commission and the Governor appointed Lafayette Lane in his place. The work was mainly done by Judge Deady, and published in 1874. W. Lair Hill undertook to compile a new collection of laws in 1885 and received Legislative sanction and approval in 1887. He carefully collected and arranged the laws and added copious annotations and references to decisions both of Oregon and other States, and published it under the name " Hill's Annotated Statutes of Oregon."
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adopted by the legislature providing for the election of an additional justice of the peace in the Eastern District of the Tuality District, and accordingly A. H. Prior was elected and received his com- mission on the 7th day of October, 1846, and he may be said to be the first judicial officer at Portland, for he afterwards held his office at that place in his precinct. 24
In 1849, Portland then having but one hundred inhabitants, an association was formed to erect a meeting house, and this building was used for several years afterward for a court house and also as a school house and a place for religions meetings.
When the city was incorporated, in January, 1851, the office of recorder 25 was created and this officer was given the same jurisdiction as a justice of the peace as to offences committed within the city, and also exclusive jurisdiction in cases of violation of city ordinances, and jurisdiction as a justice of the peace in the collection of debts. A city attorney2% was also provided for by the amended charter of 1852.27 By an amendment of October 28, 1870, the office of recorder was abolished and the police judge was made the judicial officer of the corporation, and his Court was named the Police Court. 28 He was given substantially the same jurisdiction that had been exercised by the recorders. 29
24 Laws 1843-9, Pub. 1853, page 38; 1 Sup. Court Rec., page 3.
2" The following is a list of the persons who held office of city recorder: W. S. Caldwell, 1851; S. S. Slater, 1852; A. C. Bonnell, 1853; A. P. Dennison, 1854; L. Limerick, 1855; A. L. Davis, 1856-7; Alonzo Lelaud, 1858; Noalı Huber, 1859; O. Risley, 1861; J. F. McCoy, 1862-5; J. H. Hoffman, 1866-8; O. Risley, 1869; Levi Anderson, 1870.
26 The following is a list of the city attorneys after 1865: J. N. Dolph, 1865-6; W. W. Upton, 1867; D. Freidenrich, 1868; W. F. Trimble, 1869; C. A. Dolph, 1870-1; C. A. Ball, 1872; M. F. Mulkey, 1873-4; A. C. Gibbs, 1875; John M. Gearin, 1876-7; J. C. Moreland, 1878-82; S. W. Rice, 1883; R. M. Dement, 1884; A. H. Tanner, 1885-7; W. H. Adams, 1887 -.
27 Special Laws, 1852, page 6.
2 The police judges were: D. C. Lewis, 1871; O. N. Deny, 1872-5; W. H. Adamus, 1876-9; L. B. Stearns, 1880-2; S. A. Moreland, 1883-5; Ralplı M. Dement, 1885-8; A. H. Tanner, 1889 -.
29 Charter 170, Secs. 154, 160 and 175.
[21]
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The city was also divided into precincts, in each of which justices of the peace were elected. At first these were the North and South Portland precincts; they were afterward subdivided and extended, until, for a long time, the city supported six of these Courts, besides the Police Court and the Courts of Record; but in 1885 the legisla- ture attempted to cure what had long been a public nuisance, by abolishing a number of these useless tribunals and returning to the original plan of having but two precincts, called the North and South Portland precincts respectively. 30
As the Territory of Oregon came into existence, March 3, 1849, when the new Governor, Joseph Lane, arrived at Oregon City and issued his proclamation to that effect, the District and Supreme Courts under the provisional goverminent ceased their functions, and new Judges of the Supreme Court, appointed by the President pur- suant to the Act of Congress, soon after came to Oregon. The first Judges were Wmn. P. Bryant, Chief Justice; Peter G. Burnett and Jamies Turney. Turney did not accept and Orville C. Pratt was substituted. Judge Burnett, as we have said, had already gone to California, and declined the office, and William Strong was appointed in his stead in 1850. In that year Chief Justice Bryant also resigned, and Thomas Nelson was appointed in his place.
The legislature provided for a special term of the Supreme Court by an Act passed August 28, 1849, and accordingly two days afterward, Judges Bryant and Pratt opened the term at Oregon City.
30 The Justices of the Peace who have served in the following precincts since 1863, are: 1863-4-L. Anderson, North Portland; D. W. Lichenthaler, South Portland. 1865-6-L. Anderson, North Portland; Geo. B. Gray, South Portland. 1867-L. Anderson, North Portland; Jno. Corey, South Portland; I. Graden, Central. 1868 - L. Anderson, North Portland; S. A. Moreland, Central. 1869-70-J. O. Waterman North Portland; Jno. C. Work, Central; M. P. Bull, Washington. 1871-72-Thos J. Dryer, North Portland; C. Crich, South Portland; A. M. Snyder, Central; S. A. Moreland, Washington. 1873-Alex. Dodge, North Portland; C. Crich, South Portland; Thos. J. Dryer, Western, E. W. Ryan, Morrison, H. W. Davis, Madison; L. Anderson, Conch. 1874-E. Russell, North Portland; C. Crich, South Port- land; Thos. J. Dryer, Western; E. W. Ryan, Morrison; H. W. Davis, Madison. L. Anderson, Conch. 1875-J. Reilly, North Portland; O. ; S. Phelps South Port- land; Thos. J. Dryer, Western; A. Bushwiler, Morrison; H. W. Davis, Madison; L. Anderson, Couch. 1876-7-C. S. Clark, North Portland; O. S. Phelps and C. Crich, Sonth Portland; Thos. J. Dryer, Western; R. E. Bybee, Morrison; H. W. Davis,
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There was only one case before the Court, which was decided, and an order was entered transferring the causes remaining undetermined in the Supreme Court of the late provisional government, and another order directing the Marshal to procure a seal and to provide the necessary stationery and a room at the Capital of the Territory for a court room.
The legislature had previously (July, 1849), changed the name of the Tualitin County, or Tualitin District as it had been called in earlier times, 31 to Washington County. Hillsboro was then, as now, the county seat, and the county included at that time the present County of Multnomah, which was segregated in 1854, when Portland became the county seat.
Until this latter event, almost all the law business of Portland was disposed of at Hillsboro. Judge Pratt, who was assigned to the district which included Washington county, was an able and upright judge. He was a tall and dignified man, rather elegant in his tastes and somewhat precise. He was a thoroughily educated lawyer, and although he engaged in the factious political controversies of the time, he was generally respected. On one occasion, Judge A. E. Wait, then practicing at Oregon City, presented a proposition in a cause pending before Judge Pratt at Hillsboro, which the latter thought bad law. "You need not argue that, Mr. Wait," said the Court, "it is not the law, and I don't want to hear it." "But, your Honor, I have here an authority which sustains mne, and which I
31 The word "County" in place of "District" was authorized by Act of the Legis- lature, approved December 22, 1845. Laws of Oregon, 1843-1849, page 35.
Madison; L. Anderson, Couch. 1878-9-J E. Evans and J. R. Wiley, North Port- land, C. Crich, South Portland; Thos. J. Dryer, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; L. Anderson and A. Bushwiler, Couch. 1880-81-C. Petrain, North Portland; S. S. White, South Portland; J. Phelan, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; A. Bushwiler, Couch. 1882-83-S, H. Greene, North Portland; S. S. White, South Portland; A. Keegan, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; A. Bushwiler, Couch. 1884-5-S. H. Greene, North Portland; S. S. White, South Portland; C. C. Redman, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; A. Bushwiler, Couch. 1886-7-A. Bushwiler, North Portland; B. B. Tuttle, South Portland. 1888-89-J. Phelan, North Portland; B. B. Tuttle, South Portland. 1890-John D. Biles, North Port- land; W. H. Wood, South Portland.
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would like to read." "You need not read it, it is bad law if it sus- tains your proposition, and I will uot hear it. You may sit down. I will take the case under advisement on the other questions pre- sented, and will announce iny decision this afternoon at the opening of Court." Other business was taken up by the Court and it soon became Wait's duty to argue another case. After stating his posi- tion and presenting his argument, Wait quietly proceeded to read his authority bearing on the point in controversy, and among other cases he read the one which the Court had previously refused to hear, although it did not relate to the matter then in hand. Judge Pratt leaned forward and was on the point of administering a repri- mand on the presumptuous attorney, but, evidently thinking better of it, settled back and listened without comment until the case was read, when Wait turned down the leaf and laid the book on the Judge's desk and proceeded with his argument. At noon Pratt took the book with him to his dinner table, and on resuming the Bench, announced his decision in favor of Wait, citing the case which had been forced upon his attention.
Judge Pratt on another occasion disbarred Col. W. W. Chapman because the latter filed an affidavit for his client, asking a change of venue on the ground that the Judge was biased and prejudiced against his client. Chapman drew the affidavit in general terms alleging prejudice, but the inotion was disallowed on the ground that the affidavit was insufficient; whereupon an affidavit was filed which alleged the facts in detail relied upon to show prejudice. Judge Pratt called Chapman to account at once, and required him to show cause why his name should not be stricken from the roll. The result was that a judgment was rendered suspending Chapman from practice for two years and he was ordered imprisoned. A writ of error was however obtained from the Supreme Court, staying the proceedings before any real attempt was made to enforce Judge Pratt's order. At the December terin, 1851, of the Supreme Court, at the opening of the Court, a motion was made for the admission of Chapman as an attorney of that Court; the objection was made that he had been suspended by Judge Pratt, but after taking the matter under consideration for a day or two, he was allowed to take the
CBBellinger
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oath and sign the roll as an attorney of that Court and in the meantime, while the matter was under consideration, he was permitted to argue a case before the Court.
Judge Pratt's terin expired in 1852, and he opened a law office at Multnomah City, opposite Oregon City, for a while, but after a short time removed to California, where he has sustained the promise of his career in Oregon, and his reputation and his fortune has grown with his years.
Judge Nelson and Judge Bryant never held Court in Washington County, but the Portland lawyers were often before thein when on the Circuit as well as when holding Supreme Court. A lawyer's business in those days, and for many years after Oregon liad advanced to the dignity of Statehood, required him to "ride the Circuit" and to follow the Court in its peregrinations from county to county. So that, in a sense, the early history of the Bench and Bar of Portland is closely identified with that of the whole State. There were few Court Houses, and the accommoda- tions at the hotels were often rude. One term of Court at Eugene City, at about this time, was held under an umbrageous oak tree. The mode of travel was upon horseback, and it was usual to stop at night at farm houses on the way. At the county seats, the lawyers, judges, litigants and witnesses boarded around at different houses, and as there were few public amusements, the evenings were generally spent in fireside conversations, where the tine passed very pleasantly with jokes and stories. Sometimes, however, the rush of business during term time demanded midnight lucubrations, as was the case with Judge Wait on one occasion at Hillsboro. Amory Holbrook had been retained in an important case against some of the owners of the town site of Portland regarding a steamship, for some San Francisco people, and desiring to go East, employed Wait to take charge of the case in his absence. Wait was confronted by all the lawyers of note in the Territory. There were Chapman & Mayre, Hamilton & Stark, Lansing Stout, Boise & Campbell, David Logan and others from Portland, and Columbia Lancaster from Multnomah City, all interposing pleas and demurrers and raising every objection
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that ingenuity could suggest. Poor Wait was almost submerged, but by dint of working all night, he was ready each morning for his antagonists and managed to hold his own.
Governor Lane, by proclamation, established three Judicial Districts, and assigned Judge Bryant to one, consisting of Vancouver and the counties immediately south of the Columbia, and Judge Pratt to the district called the Second District, which comprised the remaining counties in the Willamette Valley. There was no Judge in the territory at that time to sit in the Third District, which included the remainder of what is now the State of Washington. Judge Bryant was but five months in the territory. He returned to the East and resigned Jan. 1, 1851; and for nearly two years Judge Pratt remained the only Judge in the Court in Oregon. 32
Judge William Strong arrived by water in August, 1850, and Judge Nelson in April, 1851. On the same ship with Strong came General Edward Hamilton, territorial secretary, who subsequently took up his residence at Portland and became an active member of the bar there. He was associated for some years with Benjamin Stark, under the firm name, Hamilton & Stark.
Judge Strong's district was the Third and was wholly included within the present State of Washington, and he took up his residence at Cathlamet on the Columbia. Chief Justice Thomas Nelson had the first district, but when the controversy about the "Steamboat Code" and the location of the State capitol was at its
32 The Statesman, of date July 11, 1851, publislied at Oregon City, contains an editorial concurring with the sentiment expressed in a letter signed "Willamette" published therein, which was landatory of Judge Pratt. This was drawn forth by some resolutions adopted at a public meeting held at Portland, April 1, 1851, called to adopt measures to prevent the escape and provide measures for the punishment of Jabe McName, a gambler who had killed William Keene in a dispute over a game of ten-pins. The resolutions were drawn by a committee of which Col. W. W. Chap- man was the moving spirit, and were no doubt greatly biased by the political heat of the time, as well as by the personal feelings of some of the persons present at the meeting. It was resolved that, "The repeated and almost continual failure of hold- ing Courts not only in this, the Second District, but in Oregon generally is highly injurious." It was complained that no Court had been held in Washington county since the previous spring and no Judge resided in the district to whom application could be made for the administration of the laws.
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height, his district was cut down by the legislature to Clackamas county, only. He was a man of rather small stature, mild in man- ners, but firin in his opinions, and prompt and accurate in his decisions on questions of law. He was thoroughly educated, having graduated at Williams college and taken a course of medical lectures and spent some time in European travel before adopting the law as his profession.
At this time the administration of justice by the Courts was mnuch interfered with by the violent political controversies and partisan warfare that divided the judges as well as the body of the people. Amory Holbrook, of Portland, the District Attorney of the Second District, was absent in the "States," and the Legislature essayed to appoint Reuben P. Boise, afterward a resident of Portland, in his place, but Chief Justice Nelson refused to recognize the authority of the Legislature in that respect and appointed S. B. Mayre, also of Portland, to act in that capacity at the Spring Term, 1852. On the expiration of Judge Pratt's terin, in the Autumn of that year, C. F. Train was appointed in his stead by the President, but he never came to Oregon. 33
With a change of the administration at Washington, came a change in the offices of the Territory of Oregon, and instead of the existing judges, Pratt was appointed Chief Justice, with Matthew P. Deady and Cyrus Olney as associates. Pratt's name was withdrawn and that of George H. Williams was substituted. The new Judges held one terin of Court, when Deady was removed and Obadiah B. McFadden was appointed in his stead, but he was removed to the new Territory of Washington almost immediately after, and judge Deady was reinstated.34 His was the Southern Oregon District. Williams had that east of the Willamette, and Olney, west of that river. Each of these Judges held Court at different times at Portland,
33 Judge Nelson left June, 1853, after two years in Oregon.
34 It seems that Deady's removal and McFadden's substitution was owing to the fact that some political opponents of Deady's caused his commission to be made out with the use of a political nickname that had been made use of in some of the news- papers, instead of his proper name, and this was the cause for issuing another commission to McFadden, but the change, and the reasons for it were so unpopular in Oregon that Deady was soon reinstated.
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for Multnomah County was now organized by the Legislature of 1854-55, and each of them has been a prominent figure at the Bench and Bar of Portland.
In 1853, the Legislature provided for two terms of the Supreme Court annually, to be held at Salem on the first Monday of December and at Portland on the first Monday of June. The first term of the Supreme Court held by the new Judges was at Portland. Judges Deady and Olney repaired thither and opened Court on the 20th day of June, 1853. The Clerk, Allan P. Millar, was absent on a trip to to the East, and Ralph Wilcox35 was appointed Clerk until further order, and, as the records, books and papers of the Court were not at hand, an order signed "C. Olney " and "M. P. Deady," without official designation, was carried by J. W. Nesmith, the Marshal, to Allan M. Seymour, the Deputy Clerk under Millar, at Oregon City, directing him to turn over the records. The next day the Marshal returned without the books and with a report that Seymour refused to produce them, whereupon an order of attachment was issued and Seymour was brought to Portland in the custody of Nesmithi. Alexander Campbell filed interrogatories as Prosecuting Attorney, in behalf of the Territory, and Amory Holbrook attempted to be heard as Counsel for the prisoner, but the Court refused to hear him until the books were produced. Seymour said he was willing to deliver them to Millar's successor, on receiving a proper receipt upon being duly ordered to do so, but as they were in his custody and he had been ordered by Millar to take this course, he should decline until the proper receipt was tendered him. Seymour was ordered confined in the County Jail, and attempted to procure his release
35 Wilcox was a native of New York, where he graduated in a medical college, subsequently removing to Missouri, was married in 1845 and emigrated to Oregon in 1846. He was a County Judge of Tualitin County in 1847, and afterwards a member of the Legislature several terms. After holding the office of Clerk of the Supreme Court a short time, he was appointed iu 1856 to the office of Register of the U. S. Land Office at Oregon City, which office he held until 1858, and was then again elected County Judge of Washington County and again a member of the Legislature. July 3, 1865, he was appointed Clerk of the U. S. District Court at Portland, a position he held until April 18, 1877, when he died by his own hand. He was a genial man, a universal favorite with the bar, and though he liad some weaknesses, he merited his popularity.
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by habeas corpus, but Olney, before whom the application for the writ had been made in chambers, adjourned the_hearing to the open Court, and on the return of the writ ordered him to jail, whereupon he agreed to surrender thejrecords and go with the Marshal to the place where they were concealed. The Marshal brought the books to Court and the whole matter was dropped on Seymour's paying the costs, it appearing that he was acting under advice of Millar's sureties, and the Court taking into consideration his youth and his good intention. A number of appeal cases were heard at this term of Court, many being from Portland, as the law business there was already assuming importance, and among other business was the admission to the Bar of Benjamin Stark, Esq. 36
After the organization of Multnomah county, with Portland as the county seat, law business there increased greatly in volume and importance. The growth of the population and the business of the place accomplished this result. The first term of the District Court there was held by Judge Olney in a wooden building at the corner of Front and Salmon streets, known as Nos. 161 and 163 Front street, a small and ill-constructed building which was rented of Coleman Barrell, until 1867, when the present Court House was erected. The term was opened April 16, 1855, though as early as the 9th of February previous some confessions of judgment had been entered by the clerk in two cases against John M. Breck and William Ogden, in favor of Thomas F. Scott and John McCarty respectively. The first case called by Judge Olney was the case of Thomas V. Smith against William N. Horton; Messrs. Logan and Chinn appeared as attorneys for the plaintiff and asked for a non- suit, which was granted. The same disposition was made of a num-
36 The attorneys of the Territorial Supreme Court admitted before that time were : December Term, 1851, John B. Preston, David B. Brennan, Simon B. Mayre, A. Campbell, Alexander E. Wait, William T. Matlock, Cyrus Olney. E. Hamilton, W. W. Chapman, J. B. Chapman, Columbia Lancaster. December Term, 1852 : J. G. Wilson, Milton Elliott, James McCabe, Reuben P. Boise, G. N. McConaha, J. A. B. Wood, David Logan, Addison C. Gibbs, M. P. Deady, A. L. Lovejoy, A. Holbrook, B. F. Harding, L. F. Grover, G. K. Shiel, E. M. Barnum, James K. Kelly, R. E. Stratton, S. F. Chadwick, L. F. Mosher, C. Sims, M. A. Chinn, Delazon Smith, N. Huber. (Vol. 2, Sup. Ct. Records.)
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ber of other cases, in some of which the same attorneys appeared and in others, Campbell & Farrar appeared. On the second day of the term defaults were entered in a large number of cases, the attor- neys who appeared, besides those already mentioned, being Hamil- ton, Stark, McEwan, Wait and Marquam. A jury case was tried, William W. Baker, plaintiff, vs. George J. Walters, defendant, the verdict being returned in favor of the defendant. At the same term a number of cases for retailing spirituous liquors on Sunday were disposed of and one case wherein the defendant was accused of selling a gun to an Indian. Peter Espelding was admitted to citi- zenship. 37
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