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Reorganization of the Judicial System after the Creation of Oregon Territory
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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 height, his district was cut down by the legislature to Clackamas county, only. He was a man of rather small stature, mild in manners, but firm 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 much 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 term, in the Autumn of that year, C. F. Train was appointed in his stead by the President, but he never came to Oregon.1
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 Pratt’s name was withdrawn and that of George H. Williams was substituted.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 term 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.2 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, 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 Wilcox3 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 Nesmith. 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 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 therecords 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.4)
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 number 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 attorneys who appeared, besides those already mentioned, being Hamilton, 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 citizenship.5
The first County Court in Multnomah County began its term January 17, 1855. G. W. Vaughn was County Judge, and Ainslie R. Scott and James Bybee, Commissioners.6 When the State was organized, the first term of the County Court was opened on the 4th day of July, 1859, with Hon. E. Hamilton as County Judge.
In addition to the leading members of the Portland Bar at this period, already mentioned, were W. W. Chapman and Amory Holbrook. The first of these to come to Portland was W. W. Chapman, who still lives, the oldest member of the Bar of the city. Frequent mention of him has been made in the preceding pages. Of late years he has not been engaged in active practice, but at the period of which we now speak he was prominent not only in legal affairs but in political as well. At the Bar, he was ever polite and dignified, a gentleman of the old school.
Holbrook, a young man of medium height, fair and good looking, came to Oregon in March, 1849, and was at this time in his prime. His abilities as an orator were of no mean order and his quick perception and ready knowledge of law combined to make him one of the foremost figures of the times. He was a member of the Legislature afterwards and a candidate for United States Senator, but his temperament, volatile and variable, led him to habits that interfered with the career of more than one of the brilliant lights of the Bar in these earlier days of its history. Moreover, he was noted for a certain biting humor which gave vent to numerous sharp sayings, which, though repeated with enjoyment by those who were not the subjects of his caustic sarcasm, made bitter enemies of others. His abilities as a lawyer never waned until his death at middle age cut him off. David Logan was perhaps the greatest jury lawyer of his time. Like Holbrook, he had, as a contemporary has remarked, but one enemy, and that was himself. He was born in 1824 at Springfield, Illinois, and was a son of an eminent lawyer and judge of the Supreme Court of that State. He came to Oregon in 1850, and settled in Lafayette but removed to Portland soon after. He was defeated as a candidate for the Legislature, in 1851. He served as a member in 1854, and ran unsuccessfully as a candidate for Congress in 1860 and again in 1868. He was a member of the Constitutional Convention. Logan had a large practice and was very popular. He was shrewd and sharp-witted and for twenty years held front rank at the Portland Bar. He was of medium size, light complexion, and had curly hair and a light mustache. Another lawyer of this period worthy of special mention is Alexander Campbell, who was particularly well drilled in the principles of common law. He placed great dependence upon his books, carefully preparing his cases, and appearing in Court with an armful of authorities on every occasion. He removed to California, after a few years in Oregon, and became a judge of the Supreme Court of that State and a leading member of the San Francisco Bar. Mark A. Chinn and W. H. Farrar were bright men, and each was a partner of Logan for a time. Simon B. Mayre, a partner of Chapman in those days, had a good name. Benjamin Stark was in partnership with Hamilton, under the firm name, Hamilton & Stark for some time, as has already been mentioned. He was a member of the legislature in 1853 and 1860 and was appointed United States Senator to fill the vacancy caused by the death of E. D. Baker, in 1861. He was accused of disloyal sentiments and some delay was occasioned before he took the oath, but was finally admitted. As one of the owners of the townsite and a wealthy man he attained some prominence, but for many years has resided in the State of Connecticut.
P. A. Marquam was also one of the first members of the bar of Portland, and served as county judge for some years. Of late years he has retired from practice, devoting himself to his private business affairs, which he has managed with success.
Judge Olney made Portland his place of residence, and though a somewhat peculiar man he was highly respected and was a modest and unassuming gentleman. He had a noticeable faculty for taking up all the circumstances and details of a case and arranging them in logical sequence into a persuasive argument. He was a member of the State Constitutional Convention, and later he removed to Clatsop county, and represented his district in the legislature in 1864. Gradually he retired from active legal practice, spending his last days quietly upon his farm. George H. Williams and he had been Circuit Judges in adjoining circuits in Iowa, where both were elected at the first State election of that State in 1847. Olney came to Oregon, where he was appointed by President Pierce, Associate Justice of the Supreme Court; and Williams, on being likewise appointed Chief Justice, followed him a few months after. ‘ They remained close friends until the death of Olney, and continued on the bench together until 1858, when both resigned.
During this period the Supreme Court, consisting of these two judges and Mathew P. Deady, passed upon many interesting and important questions, and by the decisions made in the District Courts as well as when the judges sat together as a Supreme Court, the practice was settled and many serious questions were set at rest. The cases that affected the town site are elsewhere treated of at length, and nothing more need be said here than that at this time and for many years afterward some of the most important litigation that engaged the attention of the Bench and Bar of Portland arose from this source.
One case that might be mentioned arose in Polk County in 1853, By writ of habeas corpus a colored man and his wife were brought before Judge Williams, and it appeared that they had been brought as slaves from Missouri, by Nathaniel Ford, and were being held by him as such in Oregon. After careful inquiry the Court decided that there could be no slavery in the Territory of Oregon, and that the slaves were freed when brought to free soil.
Many cases arose under the Donation Land Law, and in one of them7 it was decided that an Indian wife of a white man was a married woman within the meaning of the Act, and capable of holding a half section of land, which decision it may be supposed affected not a few of the very early settlers in the Territory.
On the resignation of Judge Olney, Reuben P. Boise8 was appointed Associate Judge of the Territory, and Judge Williams having also resigned, Judges Deady and Boise remained the only judges until the admission of the State in 1859.9 At the election of June, 1858, to provide officers for the new State, Matthew P. Deady, R. E. Stratton, R. P. Boise and A. E. Wait were elected Judges of the Supreme Court, and on the 20th of May, 1859, they met at Salem and drew lots for their terms of office. Boise and Stratton drew the six year terms and Wait the four year term, the latter becoming, by virtue of the Constitution, Chief Justice. Deady having in the meantime been appointed by the President, Judge of the District Court of the United States for the District of Oregon, did not qualify for the State Court, and P. P. Prim, of Jackson County was appointed in his stead, and at the election of 1860 was continued in office by vote of the people.10 These judges under the constitution were Judges of the Circuit Courts and sat together as a Supreme Court at stated intervals Of these, Wait represented the Fourth District, which included Multnomah County. He resigned in 1862 to run for Congress, but was defeated and settled down to the practice of his profession at Portland, and in the meantime William W. Page was appointed judge and held Court from May to September, 1862. In the election of that year, E. D. Shattuck was elected over Page, who was a candidate, and in the same year Joseph G. Wilson was appointed to the newly created Fifth District,11 and the Court as thus constituted continued until 1867 without change in its personnel.
Soon after the creation of the State, provision was made by Congress for extending the judicial system of the United States over Oregon. A District Court was provided for, and Matthew P. Deady was appointed judge,12 a position which he has since filled with dignity, until now, with the exception of one or two, he has been longer upon that bench than. any of the Federal Judges of the United States.
Judge Nelson left June, 1853, after two years in Oregon. ↩
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 newspapers, 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. ↩
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 in 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 had some weaknesses, he merited his popularity. ↩
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. ↩
The first jury in Multnomah County consisted of J. S. Dickenson; Clark Hay, Felix Hicklin, K. A. Peterson, Edward Allbright, Thomas H. Stallard, William L. Chittenden, George Hamilton, William Cree, Robert Thompson, William H. Fresh, Samuel Farnam, William Hall, William Sherlock, W. P. Burke, Jacob Kline, Jackson Powell, John Powell. ↩
The following is a list of the Judges of the County Court of the State of Oregon for Multnomah County: E. Hamilton, 1858-1862; P. A. Marquam, 1862-1870; E. Hamilton, 1871-74 ; J. H. Woodward, 1875-78 ; S. W. Rice, 1879-82 ; L. B. Stearns, 1883-85 ; J. C. Moreland, 1885-86 ; John Catlin, 1886-90. ↩
Randolph vs. Otis, 1 Or. 153. ↩
Boise who lived for some time at Portland has spent most of his life upon the bench of the Supreme and Circuit Courts of Oregon, and is at present Circuit Judge in the Third District. As a judge he has deserved honor, being recognized as fearless and upright, and by reason of his many years of experience, as well as his early education, is well fitted for his position. ↩
The following Portland lawyers were members of the Constitutional Convention: M. P. Deady, J. K. Kelly, A. L. Lovejoy, Cyrus Olney, John H. Reed, L. F. Grover, Geo. H. Williams, David Logan, Reuben P. Boise and E. D. Shattuck. ↩
By the Act of June 3, 1859, a term of the Supreme Court was directed to be held at the Seat of Government on the first Monday of December following, and there-after at the Seat of Government, on the second Monday in December, and at Portland on the second Monday in July annually. By Act of October 17, 1862, one term was ordered to be held at the Seat of Government annually on the first Monday of Sep-temper. This was again changed in 1872, 1878, 1880 and 1889, no provision being made for holding Court at Portland, but the Act of 1889 providing for one term each year at Pendleton. ↩
Act approved October 11, 1862, entitled “Au Act to create the Fifth Judicial District, and increase the number of Justices of the Supreme Court.” ↩
His commission was dated March 9, 1859. ↩
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