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Status of the Courts Prior to Territorial Government

The book was brought to Oregon in 1843; it was called the "blue book," and was bound in blue boards. On the 27th of June, 1844, the Legislative Committee adopted an Act "Regulating the Executive Power, the Judiciary and for Other Purposes," of which Art. III, Sec. 1, was as follows: "Sec. 1. All the Statute Laws of Iowa Territory passed at the first session of the Legislative Assembly of said Territory and not of a local character, and not incompatible with the condition and circumstances of the country shall be the law of the government, unless otherwise modified; and the Common Law of England and principles of equity, not modified by the Statutes of Iowa or of this government and not incompatible with its principles, shall constitute a part of the law of the land."

After the Organic Law had been remodeled in 1845, and the Legislature convened in August of that year, it was deemed advisable to re-enact the Iowa Laws, lest any doubt of their binding force under the new provisional government be entertained, and accordingly a bill for that purpose was passed, August 12, 1845.¹⁸ At this time there was no printing press in Oregon, and though many laws were enacted it is not to be presumed that they were very widely promulgated, and perhaps the maxim that ignorance of the law excuses no one, would, under the circumstances, prove severe application.¹⁹ But, again, on the organization of the Territory in 1849, under the laws of the United States, the same question as to how far these statutes were the law of the Territory, was raised, and in order to settle any doubts as to the law, a similar statute was enacted by the Territorial Legislature at its first session, September 29, 1849. In the meantime the addition of 1843 of the Code of Iowa had found its way to Oregon, which also was bound in blue board covers. This book now became familiarly known as the "Blue Book" and the former edition as the "Little Blue Book."²⁰ The act, adopting this edition, provided for the substitution of the word "Oregon" for" Iowa" wherever it occurred in the Iowa Code of 1843, and directed²¹ that the laws with certain changes "be indexed and published after the manner of the Iowa Laws of the date aforesaid, to which shall be prefixed the Declaration of Independence, the Constitution of the United States, the Ordinance of 1787, the Constitution of the Provisional Government of Oregon, and the Organic Laws of Oregon Territory." ²²  The peculiar status of the Courts at this period, is expressed by Judge Deady, in the case of Lownsdale vs. City of Portland, decided in 1861, in the following language, which was afterward quoted with approval by the Supreme Court of the United States in the case of Stark vs. Starrs

"It is well known that at the time of the organization of Oregon Territory, an anomolous state of things existed here. The country was extensively settled and the people were living under an independent goverment established by themselves. They were a community in the full sense of the word, engaged in agriculture, trade, commerce and the mechanic arts; had built towns, opened and improved farms, established highways, passed revenue laws and collected taxes, made war and concluded peace."²³

In the case of Baldro vs. Tolmie (1 Or. Rep. 178), the territorial Supreme Court, after the provisional government was superceded, speaking through Williams, C. J., said: "Confessedly the provisional government of this territory was a government de facto, and if it be 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 communities 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 governments 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 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 commission 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 religious meetings.

When the city was incorporated, in January, 1851, the office of recorder²⁵ 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 attorney²⁶ 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  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 legislature 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 tinder the provisional government ceased their functions, and new judges of the Supreme Court, appointed by the President purstiant to the Act of Congress, soon after came to Oregon. The first Judges were Win. P. Bryant, Chief Justice; Peter G. Burnett and James 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. 

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 thoroughly 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 me, and which I would like to read. " " You need not read it, it is bad law if it sustains your proposition, and I will not hear it. You may sit down. I will take the case under advisement on the other questions presented, and will announce my 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 position 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 reprimand 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 motion 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 term, 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 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 term 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 them when on the Circuit as well as when holding Supreme Court. A lawyer's business in those days, and for many years after Oregon had 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 accommodations 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 time 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 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
 

18 Or. Archives, page 101.

19 The Oregon Spectator, the first Oregon newspaper, appeared at Oregon City in 1845, and this paper contained the only publication of the Statutes from time to time until 1851.

20 Bancroft, Vol. XXIV, page 435.

21 Laws of 1843-49, published 1853, page 103. At this time there was a great controversy as to the constitutionality of an act locating the State Capital and other institutions, and Judges Strong and Nelson siding with the persons who opposed the location of the Capital at Salem, held the statute invalid as relating more than one subject, not expressed in the title thereof. Judge Pratt decided that the act was valid and held Court at Salem. This code was nicknamed the " Steamboat Code" by Amory Holbrook, then District Attorney, and the title was adopted by many who sided with Judges Strong and Nelson, the soubriquet deriving its piquancy from the fact that the statute adopting it was loaded with miscellaneous provisions, not specifically indicated by the title. Judge Pratt at the request of the Legislature submitted an opinion in writing to that body advocating the constitutionality of the act. In the Winter of 1853-54 the new judges of the Supreme Court appointed in the meantime, held the act valid.

22 This publication was prepared for the Territorial Secretary, Gen. Edward Hamilton, by Matthew P. Deady, and contained only those parts of the Iowa Code generally recognized as the law in Oregon, and in January, 1853, an act was passed authorizing the collection and publication of the statutes of the provisional government not published in that volume. This is entitled " Oregon Archives," and was edited by L. F. Grover. In the same session of the Legislature, a commission

23 6 Wall, U. S. 402. consisting of Messrs. J. K. Kelly, R. P. Boise, and D. R. Bigelow was appointed to draft a code, this was, by Judge Olney's influence, separated into statutes on various subjects before being adopted as a code. It was printed in New York, and after about 1.00 copies had been received in Oregon the remainder of the edition was lost in the wreck of a vessel bringing them via the Upper Columbia. Another edition was authorized in 1854-55 in which was incorporated, as a supplement, the statutes adopted at that session of the Legislature. In 1860, A. C. Gibbs and J. K. Kelly were appointed a commission to draft a civil code, but on the election of Gibbs as Governor, the two commissioners appointed Matthew P. Deady, who was then Judge of the District Court of the U. S., to assist, and the work was done by him and adopted by the Legislature of 1863. This was a laborious task, as the alterations necessary on account of the change from Territory to State and the alterations of counties, courts and practice required much detail work. The same Legislature then authorized the compilation of a Criminal Code by Judge Deady, which he accomplished, and reported his work to the Legislature of 1864, which adopted it without change,-Judge Deady reading it through on the last day of the session himself in the Senate to insure its passage, as he was a very rapid reader, and could read for several consecutive hours without rest. Deady was then authorized to compile for publication anew all the codes and laws, and this was published under his supervision, in 1864, he reading the proof. In 1872, the Legislature authorized Judge Deady and Sylvester C. Simpson, a member of the Portland bar, to collect and arrange the laws with 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."

24 Laws 1843-9, Pub. 1853, page 38; 1 Sup. Court Rec., page 3.

25 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 Leland, 1858; Noah 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.

28 The police judges were: D. C. Lewis, 1871; O. N. Denny, 1872-5; W. H. Adams, 1876-9; L. B. Stearns, 1880-2; S. A. Moreland, 1883-5; Ralph M. Dement, 1885-8; A. H. Tanner, 1889-.

29 Charter 170, Secs. 154, 160 and 175.

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. 1869-70-1. 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, Couch. 1874-E. Russell, North Portland; C. Crich, South Port-land; Thos. J. Dryer, Western; E. W. Ryan, Morrison; H. W. Davis, Madison. L. Anderson, Couch. 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, South Portland; Thos. J. Dryer, Western; R. E. Bybee, Morrison; H.W.Davis,

31 The word "County" in place of " District" was authorized by A& of the Legislature, 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. Bites, North Port-land; W. H. Wood, South Portland.

32 The Statesman, of date July 11, 1851, published at Oregon City, contains an editorial concurring with the sentiment expressed in a letter signed "Willamette" published therein, which was laudatory 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 Jambe 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 holding 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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