FootNote
The new kid on the block, FootNote is known for digitizing historical
documents... many of which are genealogical gems. With naturalizations,
city directories, war records, newspapers, town records, etc... this new
kid is quickly being recognized as an alternative to Ancestry.
While we know our northern friends may not feel it, in the South, Spring is
here. So we thought we'd share a few of our gardening sites appropriate
for this time of the year. Along with gardening, there's grilling, and getting
ready to diet so that you can fit back into that bathing suit this summer!
Oregon Under Canadian
Laws-Efforts of the American Settlers to
Organize a Judiciary-Peculiar and Comical
Features of their Proceedings-The first
Judiciary System-Re-organization of the
Judiciary by the Provisional Legislature of
1845-Early Judges and Attorneys-Manner of
Adopting the Laws of Iowa-Status of the
Courts Prior to Territorial Government-First
Court House at Portland-Establishment of
Office of Recorder, and Other City Judicial
Offices-List of Recorders, City Attorneys,
Police Judges and Justices of
Peace-Re-organization of the Judicial System
after the Creation of Oregon
Territory-Incidents in the Administrations
of Justice During Territorial Period-First
Term of the Supreme Court-Organization of
Multnomah County Court-Sketches of Leading
Attorneys of Portland Prior to
1855-Interesting Cases before the Supreme
Court-Organization of the United States
District Court-Portland Attorneys after the
Admission of Oregon as a
State-Re-organization of the Judicial System
of the State in 1878 Judges who have Served
in Portland and Multnomah County
Courts-Cases of Historic Importance Tried
Before Portland Courts-United States vs.
Randall-The Holladay Cases-List of Attorneys
who have Practiced at the Portland Bar.
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 settlement3,
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 Multnomah4.
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.
Wilson5, 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 Attorney14
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."
1 Douglas
was elected by the Legislature of 1845 one
of the District Judges of the Vancouver
District.
2 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.
3 Gray History of Oregon,
page 201. Wells History of the Willamette
Valley, page 243.
4 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.
5 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.
12 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.
