The origin and development of the Courts and the law in this community afford a striking illustration of the adaptability of the American people to the necessities of their condition, and their natural aptitude for State building and self government. Would the scope of our work permit, it would be interesting and instructive to follow in detail the various steps taken by the pioneers of Oregon in creating a civil polity for themselves without adventitious aid or the supervising control of a sovereign government, and to show how the diverse and often conflicting influences of religion, nationality, heredity and individual environments were blended and coalesced into a practical system of laws. But our present purpose is to describe the Bench and Bar of Portland, and reference to the growth of the legal and constitutional organism of the State is necessary only as it shows the conditions under which the Courts and the law in the city are to be viewed.
The operation of the laws of Canada was, by Act of Parliament at an early day, extended to include the English subjects on the Pacific Coast, and three Justices of the Peace were commissioned, one of whom, James Douglas, 1 afterward Sir James Douglas and Governor of the Hudson’s Bay interests for a short time before the United States extended its jurisdiction over the Territory, resided at Vancouver and exercised his duties as Justice there until the provisional government was organized. 2
The protestant missionaries, likewise, appointed a Justice of the Peace, but the cases that came before these officers for adjudication were rare and of little importance. The settlers were so few in number and so widely scattered that Courts were not often needed. With these exceptions there was no attempt to organize a judiciary in the Northwest until in 1841.
At that time the American settlers in. the Willamette Valley were anxious that the government of the United States ex-tend its sovereignty over the Oregon country and establish a system of local laws and government, but to this the sentiment of the French and Canadian settlers was more or less openly hostile. Ewing Young, who had been an active and prominent figure in the settlement and had, after a life of adventure and roving, accumulated a small estate, chiefly by a successful enterprise in driving from California a herd of cattle, died at his home near the present site of the town of Gervais, and the advocates of a local government found a convenient pretext for the consummation of their plans in the absence of probate courts and laws to regulate the administration of his estate. A meeting was held by the settlers, after the funeral, at Young’s house, which, after appointing a committee to draft a constitution and a code of laws and recommending the creation of certain offices, and, in committee of the whole, nominating persons for those offices, adjourned until the next day. In accordance with the adjournment a full meeting was held at the American Mission House on the 18th day of February, 1841, and, among other proceedings had, I. L. Babcock was elected Supreme Judge, with probate powers.
The peculiar and comical feature of this proceeding was in the adoption of a resolution at this meeting instructing the Supreme Judge to act according to the laws of the State of New York until a code of laws should be adopted by the community. One historian affirms that at the time there was not a copy of the New York Code in the settlement 3 , and certainly there was not more than one.
The judge was a physician, connected with the Methodist Mission, who had perhaps never read a law book. By some adverse fate the projected government was never finally organized as intended, but Dr. Babcock was subsequently elected a Circuit Judge, and, at the time the first houses were building in Portland, he was holding court in the Clackamas district and occasionally in the district which included the present county of Multnomah 4 . Another attempt at forming a provisional government was made in 1843, with the result that an Organic Law, somewhat rudely framed upon the ground plan of the Ordinance of 1787, was adopted by the people at a public meeting held July 5, 1843.
In the meantime, while taking the preliminary steps toward organization and the adoption of laws, at a meeting held on the 2d day of May, 1843, at Champoeg, A. E. Wilson 5 , was selected to act as Supreme Judge, with probate powers, and a number of magistrates were elected. By the adoption of the judiciary system proposed at the same meeting by the legislative committee, these officers were continued in office until their successors should be elected, and a general election was provided for on the 2d day of May, 1844.
The territory was organized into four districts for Judicial purposes, the First District, to be called the Tuality District, comprised all the country south of the northern boundary of the United States, west of the Willamette or Multnomah River, north of the Yamhill River and east of the Pacific Ocean.
This arrangement, however, was altered by the first Legislature that met pursuant to the provisions of the organic act, in June, 1844, and the whole fabric of government was remodeled. So far as the judiciary was concerned the change was chiefly in vesting the judicial power in Circuit Courts and Justices of the Peace, and providing for the election of one Circuit Judge, with probate powers, whose duty it should be to hold two terms of Court annually in each county. Justices of the Peace and other officers were to be elected, and their duties were defined.
Babcock, who had been elected Circuit Judge in May, 1844, defeating by a considerable majority, J. W. Nesmith, P. H. Burnett, P. G. Stewart, Osborn Russell and O. Johnson, resigned the office November 11, 1844. He was succeeded by J. W. Nesmith, who held his first term in April, 1845, at Oregon City.
The Courts were now fully and properly organized, but there were no suits of importance at this period. Almost all the cases were heard before the Justices of the Peace and no record remains. The earliest record of any case in the Supreme Court arose from the district in which Portland was included, between two farmers who came to the territory with the large immigration of 1843, and located in the prairies of Yamhill County. It seems that among the cattle brought overland in that year in great numbers by the settlers, Ninevah Ford and Abi Smith each had several head, but when the valley was reached these had dwindled down in number, by the hardships and short rations of the journey, and both Ford and Smith claimed the ownership of a certain pair of oxen that remained. Ford had the cattle and Smith brought suit for their possession and upon trial before two Justices of the Peace, sitting as a Supreme Court, in April, 1844, a verdict was returned by the jury in favor of the plaintiff.
The Legislature that was elected in 1845, under this new scheme of government, at once appointed a committee again to revise the Organic Law, and then it was that the fundamental act which is generally referred to as creating the Provisional Government, a model of statecraft, and upon which the State Constitution of Oregon was afterwards constructed, was prepared, and subsequently ratified by the people at an election held July 26, 1845.
By the eighth section of Article II of this instrument, the judicial power was vested in the Supreme Court and in such inferior Courts as might, from time to time, be established by law. The Supreme Court, consisting of one judge, to be elected by the House of Representatives for the term of four years, was given appellate jurisdiction only, with general superintending control over all inferior Courts of law, and power to issue certain original remedial writs and to hear and determine the same. The Legislature might also provide for giving the Supreme Court original jurisdiction in criminal cases.
The Legislature elected Nathaniel Ford, of Yamhill County, Supreme Judge at its meeting, August 9, 1845, and passed various as creating district, probate, criminal and justice courts, electing B. O. Tucker, H. Higgins and Wm. Burris, District Judges of Tuality County. Nathaniel Ford declined to accept the office of Supreme Judge and the House elected in his stead Peter H. Burnett. Burnett had come to Oregon in 1843 from Missouri, where he had been District Attorney, and with General M. M. McCarver, afterward Speaker of the House of Representatives, had located and laid out the town of Linnton, on the Willamette, and lived there in the early part of 1844, but in May, 1844, he removed with his family to a farm in Tualatin Plains near Hillsboro. He was one of the Legislative Committee in 1844, and again in 1848. 6 Burnett was perhaps the ablest lawyer of this period of Oregon History, 7 but as he says, 8 there was nothing to do in his profession until some time after his arrival in Oregon and he was therefore compelled to become a farmer. He held the office of Supreme Judge until December 29, 1846, when he resigned the office. 9 Elected to the Legislature of of the Provisional Government, in 1848, he again resigned, this time to go to California, where he received a commission from President Polk; dated August 14, 1848, as one of the Justices of the Supreme Court of Oregon, under the Territorial organization. This commission he declined, and in August, 1849, was elected Judge or Minister of the Superior Tribunal of California. 10 On the organization of that State, he was elected Governor, and subsequently became a banker at San Francisco.
When Judge Burnett opened Court, June 2, 1846, at Oregon City, three attorneys were admitted to the bar: 11 W. G. T. Vault, A. L. Lovejoy and Cyrus Olney. 12 These were the first attorneys regularly admitted to practice in the Supreme Court in Oregon, though others were in the Territory and had practiced before the inferior Courts, and of these three, two of them, A. L. Lovejoy and Cyrus Olney are identified in no slight degree with the history of the Bench and Bar of Portland.
Both Pettygrove and Lovejoy, the original Portlanders, were versed in the law. Pettygrove was a merchant at Oregon City and served as Judge of the District Court, in the Clackamas District in 1844 and 1845, resigning his office in December, 1845. 13 Lovejoy was one of the first lawyers that came to the territory, and from the first his name is associated with public affairs. He was a very positive character, firm and often extreme in his opinions, but was a man of many good qualities. He lived but a brief time at Portland, though he always took an interest in its affairs. In his earlier years in Oregon, particularly in the days of the provisional government, he was an active practitioner, and frequently served as Prosecuting Attorney 14 and as a member of the Legislature, and was the first regular Democratic candidate for Governor of Oregon under the provisional government, but as he grew older he devoted himself to the quiet of farm life near Oregon City, where he died 1882. A sketch of his connection with the founding of Portland is presented in a preceding chapter.
The first business before the Supreme Court, and the first written opinion of which there is any record, was in reference to an application of James B. Stephens for a license to keep a ferry across the Willamette at Portland, which was denied on the ground that the statute conferring the power to grant licenses upon the Supreme Court was unconstitutional as in contravention of the provisions of the Organic Law which gave the Court appellate jurisdiction only, except in criminal cases. The only other business done at this term was in a case wherein John H. Couch, of Portland, was plaintiff. 15
After Judge Burnett resigned, J. Quinn Thornton was appointed Supreme Judge, Feb. 9, 1847, and held his first term of Court at Oregon City on the 7th day of June, 1847. He was succeeded again, after holding two terms, by Columbia Lancaster, who also held two terms, the June and September terms in 1848, at Oregon City.
The Legislative committee that met at Willamette in May, 1843, to prepare an Organic Law, at their meeting, May 19, provided for the appointment of a committee of three, to prepare and arrange the business done at that session and revise the laws of Iowa.” This was the first suggestion of the use of the Iowa Laws in Oregon. The committee having reported the laws as revised by them, they were adopted with some modifications at a subsequent meeting. 16 The same body also adopted a resolution to purchase several law books of James O’Neil to be the property of the community, and though it is not positively known, it is believed that among these books was the only volume of the Iowa Code then in the colony. 17 At any rate, at the public meeting of the people July 5, 1843, this report of the Legislative committee was adopted, and it was, “Resolved, That the following portions of the laws of Iowa, as laid down in the Statute Laws of Iowa, enacted at the first session of the Legislative Assembly of said Territory, held at Burlington, A. D., 1838-39; published by authority, DuBuque, Bussel and Reeves, printers, 1839, certified to be a correct copy by Wm. B. Conway, Secretary of Iowa Territory, be adopted as the laws of this Territory; viz: etc.”
- Douglas was elected by the Legislature of 1845 one of the District Judges of the Vancouver District.
- Under this act the Justices had jurisdiction to the amount of two hundred pounds sterling, and in criminal cases, upon sufficient cause being shown, the prisoner was to be sent to Canada for trial.
- Gray History of Oregon, page 201. Wells History of the Willamette Valley, page 243.
- The estate of awing Young was without an administrator until in 1844, when the Legislature authorized the appointment of one. (See Laws of 1843-1849, published in 1853, page 94). Several suits were brought against it, in one of which, the name of the administrator was omitted, and the estate itself was sued; the judgment was reversed on this ground, and this was one of the earliest cases in which an opinion was written by the Oregon Supreme Court, contained in Vol. I, Supreme Court Records, page 90. A. L. Lovejoy was the administrator. The Legislature subsequently ordered a sale of the property and the use of the proceeds to erect a log jail, pledging the return of the money to any heirs of Young that might establish their claim. It may be added that heirs did appear and claimed the property, but afterwards assigned the claim, and several unsuccessful efforts were made to collect the money from the State, until finally by Legislative action the full sum and interest was paid.
- Albert E. Wilson was an intelligent, unassuming and excellent young man, who came to the country in the employ of Caleb Cushing, of Massachusetts, in company with Captain Couch, on the Chenamus, and was left in charge of the stock of goods, brought out by that vessel, at Oregon City in 1842. He was not a lawyer by education.
- Burnett’s Recollections, page 193.
- Gray’s History of Oregon, page 374.
- Burnett’s Recollections, page 181.
- Sup. Court Record, page 2.
- Burnett’s Recollections, page 339.
- Sup. Court Record, page 52.
- A. A. Skinner was also an attorney of the Court and these with Judge Burnett, after his resignation as Judge, were the only attorneys admitted to practice until June, 1848, when Samuel R. Thurston, Aaron E. Wait and Milton Elliott were on motion admitted to practice, (1 Sup. Ct. Rec. 98), these were the only attorneys admitted to practice in the Supreme Court before the organization of Oregon Territory.
- Or. Archives, page 129.
- Sup. Ct. Rec., page 10.
- Or. Archives, 19. Gray’s History of Oregon, 344.
- June 28, 1843. Or. Archives, 23, 24.
- Thornton, Or. and Cal. Vol. II, page 31.