History of Oregon (Bancroft)/Volume 2/Chapter 5

by Frances Fuller Victor

CHAPTER V.

ADMINISTRATION OF GAINES.

1850–1852.

An Official Vacancy—Gaines Appointed Governor—His Reception in Oregon—The Legislative Assembly in Session—Its Personnel—The Territorial Library—Location of the Capital—Oregon City or Salem—Warm and Prolonged Contest—Two Legislatures—War between the Law-makers and the Federal Judges—Appeal to Congress—Salem Declared the Capital—A New Session Called—Feuds of the Public Press—Unpopularity of Gaines—Close of his Term—Lane Appointed his Successor.

From the first of May to the middle of August 1850 there was neither governor nor district judge in the territory; the secretary and prosecuting attorney, with the United States marshal, administered the government. On the 15th of August the United States sloop of war Falmouth arrived from San Francisco, having on board General John P. Gaines,^[1] newly appointed governor of Oregon, with his family, and other federal officers, namely: General Edward Hamilton of Ohio,^[2] territorial secretary, and Judge Strong of the third district, as before mentioned.^[3]

Coming in greater state than his predecessor, the new governor was more royally welcomed,^[4] by the firing of cannon, speeches, and a public dinner. In return for these courtesies Gaines presented the territory with a handsome silk flag, a gift which Thurston, in one of his eloquent encomiums upon the pioneers of Oregon and their deeds, reminded congress had never yet been offered by the government to that people. But Governor Gaines was not sincerely welcomed by the democracy, who resented the removal of Lane, and who on other grounds disliked the appointment. They would not have mourned if when he, like Lane, was compelled to make proclamation of the death of the president by whom he was appointed,^[5] there had been the prospect of a removal in consequence. The grief for President Taylor was not profound with the Oregon democracy. He was accused of treating them in a cold indifferent manner, and of lacking the cordial interest displayed in their affairs by previous rulers. Nor was the difference wholly imaginary. There was not the same incentive to interest which the boundary question, and the contest over free or slave territory, had inspired before the establishment of the territory. Oregon was now on a plane with other territories, which could not have the national legislature at their beck and call, as she had done formerly, and the change could not occur without an affront to her feelings or her pride. Gaines was wholly unlike the energetic and debonair Lane, being phlegmatic in temperament, fastidious as to his personal surroundings, pretentious, pompous, and jealous of his dignity.^[6] The spirit in which the democracy, who were more than satisfied with Lane and Thurston, received the whig governor, was ominous of what soon followed, a bitter partisan warfare.

 

There had been a short session of the legislative assembly in May, under its privilege granted in the territorial act to sit for one hundred days, twenty-seven days yet remaining. No time or place of meeting of the next legislature had been fixed upon, nor without this provision could there be another session without a special act of congress, which omission rendered necessary the May term in order that this matter might be attended to. The first Monday in December was the time named for the convening of the next legislative body, and Oregon City the place. The assembly remained in session about two weeks, calling for a special session of the district court at Oregon City for the trial of the Cayuse murderers, giving the governor power to fill vacancies in certain offices by appointment, and providing for the printing of the laws, with a few other enactments.

The subject of submitting the question of a state constitution to the people at the election in June was being discussed. The measure was favored by many who were restive under presidential appointments, and who thought Oregon could more safely furnish the material for executive and judicial officers than depend on the ability of such as might be sent them. The legislature, however, did not entertain the idea at its May term, on the ground that there was not time to put the question fairly before the people. Looking at the condition and population of the territory at this time, and its unfitness to assume the expenses and responsibilities of a state, the conclusion is irresistible that jealousy of the lead taken in this matter by California, and the aspirations of politicians, rather than the good of the people, prompted a suggestion which could not have been entertained by the tax-payers.

On the 2d of December the legislative assembly chosen in June met at Oregon City. It consisted of nine members in the council and eighteen in the lower house.^[7] W. W. Buck of Clackamas county was chosen president of the council, and Ralph Wilcox of Washington county speaker of the house.^[8] George L. Curry was elected chief clerk of the council, assisted by James D. Turner. Herman Buck was sergeant-at-arms. Asahel Bush was chosen chief clerk of the house, assisted by B. Genois. William Holmes was sergeant-at-arms, and Septimus Heulat doorkeeper.

The assembly being organized, the governor was invited to make any suggestions; and appearing before the joint legislature he read a message of considerable length and no great interest, except as to some items of information on the progress of the territory toward securing its congressional appropriations. The five thousand dollars granted in the organic act for erecting public buildings was in his hands, he said, to which would be added the forty thousand dollars appropriated at the last session; and he recommended that some action be taken with regard to a penitentiary, no prison having existed in Oregon since the burning of the jail at Oregon City. The five thousand dollars for a territorial library, he informed the assembly, had been expended, and the books placed in a room furnished for the purpose, the custody of which was placed in their hands.^[9]

The legislative session of 1850–1 was not harmonious. There were quarrels over the expenditure of the appropriations for public buildings and the location of the capital. Although the former assembly had called a session in May, ostensibly to fix upon a place as well as a time for convening its successor, it had not fixed the place, and the present legislature had come together by common consent at Oregon City. Conceiving it to be proper at this session to establish the seat of government, according to the fifteenth section of the organic act, which authorized the legislature at its first session, or as soon thereafter as might be expedient, to locate and establish the capital of the territory, the legislature proceeded to this duty. The only places put in competition with any chance of success were Oregon City and Salem. Between these there was a lively contest, the majority of the assembly, backed by the missionary interest, being in favor of Salem, while a minority, and many Oregon City lobbyists, were for keeping the seat of government at that place. In the heat of the contest Governor Gaines unwisely interfered by a special message, in which, while he did not deny the right of the legislative assembly to locate and establish the seat of government, he felt it his duty to call their attention to the wording of the act, which distinctly said that the money there appropriated should be applied by the governor; and also, that the act of June 11, 1850, making a further appropriation of twenty thousand dollars for the erection of public buildings in Oregon, declared that the money was to be applied by the governor and the legislative assembly. He further called their attention to the wording of the sixth section of the act, which declared that every law should have but one object, which should be expressed in the title, while the act passed by the legislative assembly embraced several objects. He gave it as his opinion that the law in that form was unconstitutional; but expressed a hope that they would not adjourn without taking effectual steps to carry out the recommendation he had made in his message at the beginning of the session, that they would cause the public buildings to be erected.

The location bill, which on account of its embracing several objects received the name of the omnibus bill,^[10] passed the assembly by a vote of six to three in the council and ten to eight in the house, Salem getting the capital, Portland the penitentiary,^[11] Corvallis the university, and Oregon City nothing. The matter rapidly took shape as a political issue, the democrats going for Salem and the whigs for Oregon City, the question being still considered by many as an open one on account of the alleged unconstitutionality of the act.^[12] At the same time two newspapers were started to take sides in territorial politics; the Oregonian, whig, at Portland in December 1850, and the Oregon Statesman, democratic, at Oregon City in March following.^[13] A third paper, called the Times, was published at Portland, beginning in May 1851, which changed its politics according to patronage and circumstances.

The result of the interference of the governor with legislation was to bring down upon him bitter denunciations from that body, and to make the feud a personal as well as political one. When the assembly provided for the printing of the public documents, it voted to print neither the governor's annual nor his special message, as an exhibition of disapprobation at his presumption in offering the latter,^[14] assuming that he was not called upon to address them unless invited to do so, they being invested by congress with power to conduct the public business and spend the public money without consulting him. But while the legislators quarrelled with the executive they went on with the business of the commonwealth.

 

The hurried sessions of the territorial legislature had effected little improvement in the statutes which were still in great part in manuscript, consisting in many instances of mere reference to certain Iowa laws adopted without change. An act was passed for the printing of the laws and journals, and Asahel Bush elected printer, to tho disappointment of Dryer of the Oregonian, who had built hopes on his political views which were the same as those of the new appointees of the federal government. But the territorial secretary, Hamilton, literally took the law into his own hands and sent the printing to a New York contractor. Thus the war went on, and the laws were as far as ever from being in an intelligible state,^[15] although the most important or latest acts were published in the newspapers, and a volume of statutes was printed and bound at Oregon City in 1851. It was not until January 1853 that the assembly provided for the compilation of the laws, and appointed L. F. Grover commissioner to prepare for publication the statutes of the colonial and territorial governments from 1843 to 1849 inclusive. The result of the commissioner's labors is a small book often quoted in these pages as Or. Laws, 1843–9, of much value to the historian, but which, nevertheless, needs to be confirmed by a close comparison with the archives compiled and printed at the same time, and with corroborative events; the dates appended to the laws being often several sessions out of time, either guessed at by the compiler, or mistaken by the printer and not corrected. In many cases the laws themselves are mere abstracts or abbreviations of the acts published in the Spectator.^[16]

Nor were the archives collected any more complete, as boxes of loose papers, as late as 1878, to my knowledge, were lying unprinted in the costly state-house at Salem. Many of them have been copied for my work, and constitute the manuscript entitled Oregon Archives, from which I have quoted more widely than I should have done had they been in print, thinking thus to preserve the most important information in them. The same legislature which authorized Grover's work, passed an act creating a board of commissioners to prepare a code of laws for the territory,^[17] and elected J. K. Kelly, D. R. Bigelow, and R. P. Boise, who were to meet at Salem in February, and proceed to the discharge of their duties, for which they were to receive a per diem of six dollars.^[18] In 1862 a new code of civil procedure was prepared by Matthew P. Deady, then United States district judge, A. C. Gibbs, and J. K. Kelly, and passed by the legislature. The work was performed by Judge Deady, who attended the session of the legislature and secured its passage. The same legislature authorized him to prepare a penal code and code of criminal procedure, which he did. This was enacted by the legislature of 1864, which also authorized him to prepare a compilation of all the laws of Oregon then in force, including the codes, in the order and method of a code, which he did, and enriched it with notes containing a history of Oregon legislation. This compilation he repeated in 1874, by authority of the legislature, aided by Lafayette Lane.^[19]

Meanwhile the work of organization and nation-making went on, all being conducted by these early legislators with fully as much honesty and intelligence as have been generally displayed by their successors. Three new counties were established and organized at the session of 1850–1, namely: Pacific, on the north side of the Columbia, on the coast; Lane, including all that portion of the Willamette Valley south of Benton and Linn;^[20] and Umpqua, comprising all the country south of the Calapooya mountains and headwaters of the Willamette. County seats were located in Linn, Polk, and Clatsop, the county seats of Clackamas and Washington having been established at the previous sessions of the legislature.^[21]

The act passed by the first legislature for collecting the county and territorial revenues was amended; and a law passed legalizing the acts of the sheriff of Linn county, and the probate court of Yamhill county, in the collection of taxes, and to legalize the judicial proceedings of Polk county; these being cases where the laws of the previous sessions were found to be in conflict with the organic act. Some difficulty had been encountered in collecting taxes on land to which the occupants had as yet no tangible title. The same feeling existed after the passage of the donation law, though some legal authorities contended, and it has since been held that the donation act gave the occupant his land in fee simple, and that a patent was only evidence of his ownership.^[22] But it took more time to settle these questions of law than the people or the legislature had at their command in 1850; hence conflicts arose which neither the judicial nor the legislative branches of the government could at once satisfactorily terminate.

The legislature amended the act laying out the judicial districts by attaching the county of Lane to the first and Umpqua to the second districts. This distribution made the first district to consist of Clackamas, Marion, Linn, and Lane; the second of Washington, Yamhill, Benton, Polk, and Umpqua; and the third of Clarke, Lewis, and Clatsop. Pacific county was not provided for in the amendment. The judges were required to hold sessions of their courts twice annually in each county of their districts. But lest in the future it might happen as in the past, any one of the judges was authorized to hold special terms in any of the districts; other laws regulating the practice of the courts were passed,^[23] and also laws regulating the general elections, and ordering the erection of court-houses and jails in each county of the territory.

They amended the common school law, abolishing the office of superintendent, and ordered the election of school examiners; incorporated the Young Ladies' Academy of Oregon City, St Paul's Mission Female Seminary, the First Congregational Society of Portland, the First Presbyterian Society of Clatsop plains; incorporated Oregon City and Portland; located a number of roads, notably one from Astoria to the Willamette Valley,^[24] and a plank-road from Portland to Yamhill county; and also the Yamhill Bridge Company, which built the first great bridge in the country. These, with many other less important acts, occupied the assembly for sixty clays. Thurston's advice concerning memorializing congress to pay the remaining expenses of the Cayuse war was acted upon, the committee consisting of McBride, Parker, and Hall, of the council, and Deady, Simpson, and Harding of the house.^[25] Nothing further of importance was done at this session.

 

When the legislative assembly adjourned in February, it was known that Thurston was returning to Oregon as a candidate for reëlection, and it was expected that there would be a heated canvass, but that his party would probably carry him through in spite of the feeling which his course with regard to the Oregon City claim had created. But the unlooked for death of Thurston, and the popularity of Lane, who, being of the same political sentiments, and generously willing to condone a fault in a rival who had confirmed to him as the purchaser of Abernethy Island a part of the contested land claim, made the ex-governor the most fitting substitute even with Thurston's personal friends, for the position of delegate from Oregon. Some efforts had been made to injure Lane by anonymous letter-writers, who sent to the New York Tribune allegations of intemperance and improper associations,^[26] but which were sturdily repelled by his democratic friends in public meetings, and which could not have affected his position, as Gaines was appointed in the usual round of office-giving at the beginning of a new presidential and party administration. That these attacks did not seriously injure him in Oregon was shown by the enthusiasm with which his nomination was accepted by the majority, and the result of the election, as well as by the fact of a county having been named after him between his removal as governor and nomination as delegate. The only objection to Lane, which seemed to carry any weight, was the one of being in the territory without his family, which gave a transient air to his patriotism, to which people objected. They felt that their representative should be one of themselves in fact as well as by election, and this Lane declared his intention of becoming, and did in fact take a claim on the Umpqua River to show his willingness to become a citizen of Oregon. The opposing candidate was W. H. Willson, who was beaten by eighteen hundred or two thousand votes. As soon as the election was over, Lane returned to the lately discovered mining districts in southern Oregon, taking with him a strong party, intending to chastise the Indians of that section, who were becoming more and more aggressive as travel in that direction increased, and their profits from robbery and murder became more important. That he should take it upon himself to do this, when there was a regularly appointed superintendent of Indian affairs—for Thurston had persuaded congress to give Oregon a general superintendent for this work alone—surprised no one, but on the contrary appeared to be what was expected of him from his aptitude in such matters, which became before he reached Rogue River Valley wholly a military affair. The delegate-elect was certainly a good butcher of Indians, who, as we have seen, cursed them as a mistake or damnable infliction of the Almighty. And at this noble occupation I shall leave him, while I return to the history of the executive and judicial branches of the Oregon government.

 

Obviously the tendency of office by appointment instead of by popular election is to make men indifferent to the opinions of those they serve, so long as they are in favor with or can excuse their acts to the appointing power. The distance of Oregon from the seat of general government and the lack of adequate mail service made the Gaines faction more than usually independent of censure, as it also rendered its critics more impatient of what they looked upon as an exhibition of petty tyranny on the part of those who were present, and of culpable neglect on the part of those who remained absent. From the date of Judge Bryant's arrival in the territory in April 1849, to the 1st of January 1851, when he resigned, he had spent but five months in his district. From December 1848 to August 1850 Pratt had been the only judge in Oregon—excepting Bryant's brief sojourn. Then he went east for his family, and Strong was the only judge for the eight months following, and till the return about the last of April 1851 of Pratt, accompanied by Chief Justice Thomas Nelson, appointed in the place of Bryant,^[27] and J. R. Preston, surveyor-general of Oregon.

The judges found their several dockets in a condition hardly to justify Thurston's encomiums in congress upon their excellence of character. The freedom enjoyed under the provisional government, due in part to the absence of temptation, when all men were laborers, and when the necessity for mutual help and protection deprived them of a motive for violence, had ceased to be the boast and the security of the country. The presence of lawless adventurers, the abundance of money, and the absence of courts, had tended to develop the criminal element, till in 1851 it became notorious that the causes on trial were oftener of a criminal than a civil nature.^[28]

This condition of society encouraged the expression of public indignation pleasing to party prejudices and to the political aspirations of party leaders. At a meeting held in Portland April 1st, it was resolved that the president of the United States should be informed of the neglect of the judges of the first and second districts, no court having been held in Washington county since the previous spring; nor had any judge resided in the district to whom application could be made for the administration of the laws. The president should be plainly told that there were "many respectable individuals in Oregon capable of discharging the duties of judges, or filling any offices under the territorial government, who would either discharge their duties or resign their offices."^[29] The arrival of the new chief justice, and Pratt, brought a temporary quiet. Strong went to reside at Cathlamet, in his own district, and the other judges in theirs.

At the first term of court held in Clackamas county by Chief Justice Nelson, he was called upon to decide upon the constitutionality of the law excluding negroes from Oregon. This law, first enacted by the provisional legislature in 1844, had been amended, reënacted, and clung to by the law-makers of Oregon with singular pertinacity, the first territorial legislature reviving it among their earliest enactments. Thurston, when questioned in congress concerning the matter, defended the law against free blacks upon the ground that the people dreaded their influence among the Indians, whom they incited to hostilities.^[30] Such a reason had indeed been given in 1844, when two disorderly negroes had caused a collision between white men and Indians, but it could not be advanced as a sufficient explanation of the settled determination of the founders of Oregon to keep negroes out of the territory, because all the southern and western frontier states had possessed a large population of blacks, both slave and free, at the time they had fought the savages, without finding the negroes a dangerous element of their population. It was to quite another cause that the hatred of the African was to be ascribed; namely, scorn for an enslaved race, which refused political equality to men of a black skin, and which might raise the question of slavery to disturb the peace of society. It was not enough that Oregon should be a free territory which could not make a bondsman of a black man, but it must exclude the remainder of the conflict then raging on his behalf in certain quarters. Judge Nelson upheld the constitutionality of the law against free blacks, and two offenders were given thirty days in which to leave the territory.^[31]

The judges found a large number of indictments in the first and second districts.^[32] The most important case in Yamhill county was one to test the legality of taxing land, or selling property to collect taxes, and was brought by C. M. Walker against the sheriff, Andrew Shuck, Pratt deciding that there had been no trespass. In the cases in behalf of the United States, Deady was appointed commissioner in chancery, and David Logan^[33] to take affidavits and acknowledgments of bail under the laws of congress. The law practitioners of 1850–1–2 in Oregon had the opportunity, and in many instances the talent, to stamp themselves upon the history of the commonwealth, supplanting in a great degree the men who were its founders,^[34] while endeavoring to rid the territory of men whom they regarded as transient, whose places they coveted.

There is always presumably a coloring of truth to charges brought against public officers, even when used for party purposes as they were in Oregon. The democracy were united in their determination to see nothing good in the federal appointees, with the exception of Pratt, who besides being a democrat had been sent to them by President Polk. On the other hand there were those who censured Pratt^[35] for being what he was in the eyes of the democracy. The governor was held^[36] equally objectionable with the judges, first on account of the position he had taken on the capital location question, and again for maintaining Kentucky hospitality, and spending the money of the government freely without consulting any one, and as his enemies chose to believe without any care for the public interests. A sort of gay and fashionable air was imparted to society in Oregon City by the families of the territorial officers and the hospitable Dr McLoughlin,^[37] which was a new thing in the Willamette Valley, and provoked not a little jealousy among the more sedate and surly.^[38]

In order to sustain his position with regard to the location act, Games appealed for an opinion to the attorney-general of the United States, who returned for an answer that the legislature had a right to locate the seat of government without the consent of the governor, but that the governor's concurrence was necessary to make legal the expenditure of the appropriations,^[39] which reply left untouched the point raised by Gaines, that the act was invalid because it embraced more than one object. With regard to this matter the attorney-general was silent, and the quarrel stood as at the beginning, the governor refusing to recognize the law of the legislature as binding on him. His enemies ceased to deny the unconstitutionally of the law, admitting that it might prove void by reason of non-conformity to the organic act, but they contended that until this was shown to be true in a competent court, it was the law of the land; and to treat it as a nullity before it had been disapproved by congress, to which all the acts of the legislature must be submitted, was to establish a dangerous precedent, a principle striking at the foundation of all law and the public security.

Into this controversy the United States judges were necessarily drawn, the organic act requiring them to hold a term of court, annually, at the seat of government; any two of the three constituting a quorum.^[40] On the first of December, the legislature-elect^[41] convened at Salem, as the capital of Oregon, except one councilman, Columbia Lancaster, and four representatives, A. E. Wait, W. F. Matlock, and D. F. Brownfield. Therefore this small minority organized as the legislative assembly of Oregon, at the territorial library room in Oregon City, was qualified by Judge Strong, and continued to meet and adjourn for two weeks. Lancaster, the single councilman, spent this fortnight in making motions and seconding them himself, and preparing a memorial to congress in which he asked for an increase in the number of councilmen to fifteen; for the improvement of the Columbia River; for a bounty of one hundred and sixty acres of land to the volunteers in the Cayuse war; a pension to the widows and orphans of the men killed in the war; troops to be stationed at the several posts in the territory; protection to the immigration; ten thousand dollars to purchase a library for the university, and a military road to Puget Sound.^[42]

About this time the supreme court met at Oregon City, Judges Nelson and Strong deciding to adopt the governor's view of the seat-of-government question, while Pratt, siding with the main body of the legislature, repaired to Salem as the proper place to hold the annual session of the United States court. Thus a majority of the legislature convened at Salem as the seat of government, and a majority of the supreme court at Oregon City as the proper capital; and the division was likely to prove a serious bar to the legality of the proceedings of one or the other.^[43] The majority of the people were on the side of the legislature, and ready to denounce the imported judges who had set themselves up in opposition to their representatives. Before the meeting of the legislative body the people on the north side of the Columbia had expressed their dissatisfaction with Strong for refusing to hold court at the place selected by the county commissioners, according to an act of the legislature requiring them to fix the place of holding court until the county seat should be established. The place selected was at the claim of Sidney Ford, on the Chehalis River, whereas the judge went to the house of John R. Jackson, twenty miles distant, and sent a peremptory order to the jurors to repair to the same place, which they refused to do, on the ground that they had been ordered in the manner of slave-driving, to which they objected as unbecoming a judge and insulting to themselves. A public meeting was held, at which it was decided that the conduct of the judge merited the investigation of the impeaching power.^[44]

The proceedings of the meeting were published about the time of the convening of the assembly, and a correspondence followed, in which J. B. Chapman exonerated Judge Strong, declaring that the sentiment of the meeting had been maliciously misrepresented; Strong replying that the explanation was satisfactory to him. But the Statesman, ever on the alert to pry into actions and motives, soon made it appear that the reconciliation had not been between the people and Strong, but that W. W. Chapman, who had been dismissed from the roll of attorneys in the second district, had himself written the letter and used means to procure his brother's signature with the object of being admitted to practice in the first district; the threefold purpose being gained of exculpating Strong, undoing the acts of Pratt, and replacing Chapman on the roll of attorneys.^[45]

 

A majority of the legislative assembly having convened at Salem, that body organized by electing Samuel Parker president of the council, and Richard J. White, chief clerk, assisted by Chester N. Terry and Thomas B. Micou. In the house of representatives William M. King was elected speaker, and Benjamin F. Harding chief clerk. Having spent several days in making and adopting rules of procedure, on the 5th of December the representatives informed the council of their appointment of a committee, consisting of Cole, Anderson, Drew, White, and Chapman, to act in conjunction with a committee from the council, to draft resolutions concerning the course pursued by the federal officers.^[46] The message of the representatives was laid on the table until the 8th. In the mean time Deady offered a resolution in the council that, in view of the action of Nelson and Strong, a memorial be sent to congress on the subject. Hall followed this resolution with another, that Hamilton, secretary of the territory, should be informed that the legislative assembly was organized at Salem, and that his services as secretary were required at the place named, which was laid on the table. Finally, on the 9th, a committee from both houses to draft a memorial to congress was appointed, consisting of Curry, Anderson, and Avery, on the part of the representatives, and Garrison, Waymire, and Humphrey, on the part of the council.^[47]

Pratt's opinion in the matter was then asked, which sustained the legislature as against the judges. Hector was then ordered to bring the territorial library from Oregon City to Salem on or before the first day of January 1852, which was not permitted by the federal officers.^[48]

The legislators then passed an act re-arranging the judicial districts, and taking the counties of Linn, Marion, and Lane from the first and attaching them to the second district.^[49] This action was justified by the Statesman, on the ground that Judge Nelson had proclaimed that he should decree all the legislation of the session held at Salem null. On the other hand the people of the three counties mentioned, excepting a small minority, held them to be valid; and it was better that Pratt should administer the laws peacefully than that Nelson should, by declaring them void, create disorder, and cause dissatisfaction. The latter was, therefore, left but one county, Clackamas, in which to administer justice. But the nullifiers, as the whig officials came now to be called, were not without their friends. The Oregonian, which was the accredited organ of the federal clique, was loud in condemnation of the course pursued by the legislators, while the Spectator, which professed to be an independent paper, weakly supported Governor Gaines and Chief Justice Nelson. Even in the legislative body itself there was a certain minority who protested against the acts of the majority, not on the subject of the location act alone, or the change in the judicial districts, leaving the chief justice one county only for his district, but also on account of the memorial to congress, prepared by the joint committee from both houses, setting forth the condition of affairs in the territory, and asking that the people of Oregon might be permitted to elect their governor, secretary, and judges.

The memorial passed the assembly almost by acclamation, three members only voting against it, one of them protesting formally that it was a calumnious document. The people then took up the matter, public meetings being held in the different counties to approve or condemn the course of the legislature, a large majority expressing approbation of the assembly and censuring the whig judges. A bill was finally passed calling for a constitutional convention in the event of congress refusing to entertain their petition to permit Oregon to elect her governor and judges. This important business having been disposed of, the legislators addressed themselves to other matters. Lane was instructed to ask for an amendment to the land law; for an increase in the number of councilmen in proportion to the increase of representatives; to procure the immediate survey of Yaquina Bay and Umpqua River; to procure the auditing and payment of the Cayuse war accounts; to have the organic act amended so as to allow the county commissioners to locate the school lands in legal subdivisions or in fractions lying between claims, without reference to size or shape, where the sixteenth and thirty-sixth sections were already settled upon; to have the postal agent in Oregon^[50] instructed to locate post-offices and establish mail routes, so as to facilitate correspondence with different portions of the territory, instead of aiming to increase the revenue of the general government; to endeavor to have the mail steamship contract complied with in the matter of leaving a mail at the mouth of the Umpqua River, and to procure the change of the port of entry on that river from Scottsburg to Umpqua City. Last of all, the delegate was requested to advise congress of the fact that the territorial secretary, Hamilton, refused to pay the legislators their dues; and that it was feared the money had been expended in some other manner.

Several new counties were created at this session, raising the whole number to sixteen. An act to create and organize Simmons out of a part of Lewis county was amended to make it Thurston county, and the eastern limits of Lewis were altered and defined.^[51] Douglas was organized out of Umpqua county, leaving the latter on the coast, while the Umpqua Valley constituted Douglas. The county of Jackson was also created out of the southern portion of the former Umpqua county, comprising the valley of the Rogue River,^[52] and it was thought the Shasta Valley. These two new countries were attached to Umpqua for judicial purposes, by which arrangement the Second Judicial district was made to extend from the Columbia River to the California boundary.^[53]

The legislature provided for taking the census in order to apportion representatives, and authorized the county commissioners to locate the election districts; and to act as school commissioners to establish common schools. A board of three commissioners, Harrison Linnville, Sidney Ford, and Jesse Applegate, was appointed to select and locate two townships of land to aid in the establishment of a university, according to the provisions of the act of congress of September 27, 1850.

An act was passed, of which Waymire was the author, accepting the Oregon City claim according to the act of donation, and also creating the office of commissioner to control and sell the lands donated by congress for the endowment of a university; but it became of no effect through the failure of the assembly to appoint such an officer.^[54] Deady was the author of an act exempting the wife's half of a donation claim from liability for the debts of the husband, which was passed, and which has saved the homesteads of many families from sheriff's sale.

Among the local laws were two incorporating the Oregon academy at Lafayette, and the first Methodist church at Salem.^[55] In order to defeat the federal officers in their effort to deprive the legislators of the use of the territorial library, an act was passed requiring a five thousand dollar bond to be given by the librarian, who was elected by the assembly.^[56]

Besides the memorial concerning the governor and judges, another petition addressed to congress asked for better mail facilities with a post-office at each court-house in the several counties, and a mail route direct from San Francisco to Puget Sound, showing the increasing settlement of that region. It was asked that troops be stationed in the Rogue River Valley, and at points between Fort Hall and The Dalles for the protection of the immigration, which this year suffered several atrocities at the hands of the Indians on this portion of the route; that the pay of the revenue officers be increased;^[57] and that an appropriation be made to continue the geological survey of Oregon already begun.

Having elected R. P. Boise district-attorney for the first and second judicial districts, and I. N. Ebey to the same office for the third district; reëlected Bush territorial printer, and J. D. Boon territorial treasurer,^[58] the assembly adjourned on the 21st of January, to carry on the war against the federal officers in a different field.^[59]

From the adjournment of the legislative assembly great anxiety was felt as to the action of congress in the matter of the memorial. Meanwhile the newspaper war was waged with bitterness and no great attention to decency. Seldom was journalism more completely prostituted to party and personal issues than in Oregon at this time and for several years thereafter. Private character and personal idiosyncrasies were subjected to the most scathing ridicule.

With regard to the truth of the allegations brought against the unpopular officials, from the evidence before me, there is no doubt that the governor was vain and narrow-minded; though of course his enemies exaggerated his weak points, while covering his creditable ones,^[60] and that to a degree his official errors could not justify, heaping ridicule upon his past military career, as well as blame upon his present gubernatorial acts,^[61] and accusing him of everything dishonest, from drawing his family stores from the quarter-master's department at Vancouver, to re-auditing and changing the values of the certificates of the commissioners appointed to audit the Cayuse war claims, and retaining the same to use for political purposes;^[62] the truth being that these claims were used by both parties. Holbrook, the United States attorney, was charged with dishonesty and with influencing both the governor and judges, and denounced as being responsible for many of their acts;^[63] a judgment to which subsequent events seemed to give color.

 

At the regular term, court was held in Marion county. Nelson repaired to Salem, and was met by a committee with offensive resolutions passed at a public meeting, and with other tokens of the spirit in which an attempt to defy the law of the territory, as passed at the last session, would be received.^[64] Meantime the opposing parties had each had a hearing at Washington. The legislative memorial and communications from the governor and secretary were spread before both houses of congress.^[65] The same mail which conveyed the memorial conveyed a copy of the location act, the governor's message on the subject, the opinion of Attorney-General Crittenden, and the opinions of the district judges of Oregon. The president in order to put an end to the quarrel recommended congress to fix the seat of government of Oregon either temporarily or permanently, and to approve or disapprove the laws passed at Salem, in conformity to their decision^[66] in favor of or against that place for the seat of government. To disapprove the action of the assembly would be to cause the nullification of many useful laws, and to create protracted confusion without ending the political feud. Accordingly congress confirmed the location and other laws passed at Salem, by a joint resolution, and the president signed it on the 4th of May.^[67]

Thus far the legislative party was triumphant. The imported officials had been rebuked; the course of Governor Gaines had been commented on by many of the eastern papers in no flattering terms; and letters from their delegate led them to believe that congress might grant the amendments asked to the organic act, permitting them to elect their governor and judges. The house did indeed on the 22d of June pass a bill to amend,^[68] but no action was taken upon it in the senate, though a motion was made to return it, with other unfinished business, at the close of the session, to the files of the senate.

The difference between the first Oregon delegate and the second was very apparent in the management of this business. Had Thurston been charged by his party to procure the passage of this amendment, the journals of the house would have shown some bold and fiery assaults upon established rules, and proofs positive that the innovation was necessary to the peace and prosperity of the territory. On the contrary, Lane was betrayed by his loyalty to his personal friends into seeming to deny the allegations of his constituents against the judiciary.

 

The location question led to the regular organization of a democratic party in Oregon in the spring of 1852, forcing the whigs to nominate a ticket. The democrats carried the election; and soon after this triumph came the official information of the action of congress on the location law, when Gaines, with that want of tact which rendered abortive his administration, was no sooner officially informed of the confirmation of the laws of the legislative assembly and the settlement of the seat-of-government question than he issued a proclamation calling for a special session of the legislature to commence on the 26th of July. In obedience to the call, the newly elected members, many of whom were of the late legislative body, assembled at Salem, and organized by electing Deady president of the council, and Harding speaker of the house. With the same absence of discretion the governor in his message, after congratulating them on the settlement of a vexed question, informed the legislature that it was still a matter of grave doubt to what extent the location act had been confirmed; and that even had it been wholly and permanently established, it was still so defective as to require further legislation, for which purpose he had called them together, though conscious it was at a season of the year when to attend to this important duty would seriously interfere with their ordinary avocations; yet he hoped they would be willing to make any reasonable sacrifice for the general good. The defects in the location act were pointed out, and they were reminded that no sites for the public buildings had yet been selected, and until that was done no contracts could be let for beginning the work; nor could any money be drawn from the sums appropriated until the commissioners were authorized by law to call for it. He also called their attention to the necessity of re-arranging the judicial districts, and reminded them of the incongruous condition of the laws, recommending the appointment of a board for their revision, with other suggestions, good enough in themselves, but distasteful as corning from him under the circumstances, and at an unusual and inconvenient time. In this mood the assembly adjourned sine die on the third day, without having transacted any legislative business, and the seat-of-government feud became quieted for a time.

This did not, however, end the battle. The chief justice refused to recognize the prosecuting attorney elected by the legislative assembly, in the absence of Amory Halbrook, and appointed S. B. Mayre, who acted in this capacity at the spring term of court in Clackamas county. The law of the territory requiring indictments to be signed by this officer, it was apprehended that on account of the irregular proceedings of the chief justice many indictments would be quashed. In this condition of affairs the democratic press was ardently advocating the election of Franklin Pierce, the party candidate for the presidency of the United States, as if the welfare of the territory depended upon the executive being a democrat. Although the remainder of Games' administration was more peaceful, he never became a favorite of either faction, and great was the rejoicing when at the close of his delegateship Lane was returned to Oregon as governor, to resign and run again for delegate, leaving his secretary, George L. Curry, one of the Salem clique, as the party leaders came to be denominated, to rule according to their promptings.

1. According to A. Bush, of the Oregon Statesman, Marshall of Indiana was the first choice of President Taylor; but according to Grover, Pub. Life in Or., MS., Abraham Lincoln was first appointed, and declined. Which of these authorities is correct is immaterial; it shows, however, that Oregon was considered too far off to be desirable.
2. Hamilton was born in Culpeper Co., Va. He was a lawyer by profession; removed to Portsmouth, Ohio, where he edited the Portsmouth Tribune. He was a captain in the Mexican war, his title of general being obtained in the militia service. His wife was Miss Catherine Royer.
3. The other members of the party were Archibald Gaines, A. Kinney, James E. Strong, Mrs Gaines, three daughters and two sons, Mrs Hamilton and daughter, and Mrs Strong and daughter. Gaines lost two daughters, 17 and 19 years of age, of yellow fever, at St Catherine's, en route; and Judge Strong a son of five years. They all left New York in the United States store-ship Supply, in November 1849, arriving at San Francisco in July 1850, where they were transferred to the Falmouth. California Courier, July 21, 1850; Or. Spectator, Aug. 22, 1850; Strong's Hist. Or., MS., 1, 2, 13.
4. The Or. Statesman of March 28, 1851, remarks that Gaines came around Cape Horn in a government vessel, with his family and furniture, arriving at Oregon City nine months after his appointment, and drawing salary all the time, while Lane being removed, drew no pay, but performed the labor of his office.
5. President Taylor died July 9, 1850. The intelligence was received in Oregon on the 1st of September. Friday the 20th was set for the observance of religious funeral ceremonies by proclamation of Gaines. Or. Spectator, Sept. 5, 1850.
6. Lane himself had a kind of contempt for Gaines, on account of his surrender at Encarnacion. 'He was a prisoner during the remainder of the war,' says Lane; which was not altogether true. Autobiography, MS., 56–7.
7. R. P. Boise, in an address before the pioneer association in 1876, says that there were 25 members in the house; but he probably confounds this session with that of 1851–2. The assembly of 1850–1 provided for the increase of representatives to twenty-two. See list of Acts in Or. Statesman, March 28, 1851; Gen. Laws Or., 1850–1, 225.
8. The names of the councilmen and representatives are given in the first number of the Oregon Statesman. W. W. Buck, Samuel T. McKean, Samuel Parker, and W. B. Mealey were of the class which held over from 1849. I have already given some account of Buck and McKean. Parker and Mealey were both of the immigration of 1845. Parker was a Virginian, a farmer and carpenter, but a man who interested himself in public affairs. He was a good man. Mealey was a Pennsylvanian; a farmer and physician.

   Of the newly elected councilmen, James McBride has been mentioned as one of the immigrants of 1847.

   Richard Miller of Marion county was born in Queen Anne's county, Maryland, in 1800. He came to Oregon in 1847, and was a farmer.

   A. L. Humphrey of Benton county was born in Litchfield, Connecticut, in 1796 and emigrated to Oregon in 1847. He was a farmer and merchant.

   Lawrence Hall, a farmer of Washington county, was born in Bourbon county, Kentucky, March 10, 1800, and came to Oregon in 1845.

   Frederick Waymire, of Polk county, a millwright, was born in Montgomery county, Ohio, March 15, 1807. He married Fanny Cochagan, of Indiana, by whom he had 17 children. He came to Oregon in 1845 and soon became known as an energetic, firm, strong, rough man, and an uncompromising partisan. 'The old apostle of democracy' and 'watchdog of the treasury' were favorite terms used by his friends in describing Waymire. He became prominent in the politics of the territory, and was much respected for his honesty and earnestness, though not always in the right. His home in Polk county, on the little river Luckiamute, was called Hayden Hall. He had been brought up a Methodist, and in the latter part of his life returned to his allegiance, having a library well stocked with historical and religious works. He died in April 28, 1873, honored as a true man and a patriotic citizen, hoping with faith that he should live again beyond the grave. R. P. Boise, in Trans. Or. Pioneer Assoc., 1876, 27–8. His wife survived until Oct. 15, 1878, when she died in her 69th year. Three only of their children are living. All the members of the council were married men with families, except Humphrey who was a widower.

   The members of the house were Ralph Wilcox, William M. King of Washington county, William Shaw, William Parker, and Benjamin F. Harding of Marion, the latter elected to fill a vacancy created by the death of E. H. Bellinger, who died after election; W. T. Matlock, Benjamin Simpson, Hector Campbell, of Clackamas; William McAlphin, E. L. Walters, of Linn; John Thorp, H. N. V. Holmes, of Polk; J. C. Avery, W. St Glair, of Benton; Aaron Payne, S. M. Gilmore, Matthew P. Deady, of Yamhill; Truman P. Powers, of Clatsop, Lewis, and Clarke counties.

   Of Wilcox I have spoken in another place; also of Shaw, Walter, Payne, and McAlphin. William M. King was born and bred in Litchfield, Conn., whence he moved to Onondaga county, New York, and subsequently to Pennsylvania and Missouri. He came to Oregon in 1848 and engaged in business in Portland, soon becoming known as a talented and unscrupulous politician, as well as a cunning debater and successful tactician. He is much censured in the early territorial newspapers, partly for real faults, and partly, no doubt, from partisan feeling. He is described by one who knew him as firm friend and bitter enemy. He died at Portland, after seeing it grow to be a place of wealth and importance, November 8, 1869, aged 69 years. H. N. V. Holmes was born in Wythe county, Va., in 1812, but removed in childhood to Pulaski county, emigrating to Oregon in 1848. He settled in a picturesque district of Polk county, in the gap between the Yamhill and La Creole valleys. He was a gentleman, of the old Kentucky school, was several times a member of the Oregon legislature, and a prosperous farmer.

   B. F. Harding, a native of Wyoming county, Penn., was born in 1822, and came to Oregon in 1849. He was a lawyer by profession, and settled at Salem, for the interests of which place he faithfully labored, and for Marion county, which rewarded him by keeping him in a position of prominence for many years. He married Eliza Cox of Salem in 1851. He lived later on a fine farm in the enjoyment of abundance and independence. John Thorp was captain of a company in the immigration of 1844. He was from Madison county, Ky, and settled in Polk county, Oregon, where he followed farming. Truman P. Powers was born in 1807, and brought up in Chittenden county, Vt, coming to Oregon in 1846. He settled on the Columbia near Astoria. William Parker was a native of Derby county, England, born in 1813, but removed when a child to New York. He was a farmer and surveyor. Benjamin Simpson, born in Warren county, Tenn., in 1819, was raised in Howard county, Mo., and came to Oregon in 1846, and engaged in merchandising. Hector Campbell was born in Hampden county, Mass., in 1793, removed to Oregon in 1849, and settled on a farm in Clackamas county. William T. Matlock, a lawyer, was born in Rhone county, Tennessee, in 1802, removed when a child to Indiana, and to Oregon in 1847. Samuel M. Gilmore, born in Bedford county, Tenn., in 1814, removed first to Clay and then to Buchanan county, Missouri, whence he emigrated in 1843, settling in Yamhill county. W. St Clair was an immigrant of 1846.

   Joseph C. Avery was born in Lucerne county, Penn., June 9, 1817, and was educated at Wilkesbarre, the county seat. He removed to Ill. in 1839, where he married Martha Marsh in 1841. Four years afterward he came to Oregon, spending the winter of 1845 at Oregon City. In the following spring he settled on a land claim at the mouth of Mary's River, where in 1850 he laid out a town, calling it Marysville, but asking the legislature afterward to change the name to Corvallis, which was done.  Matthew Paul Deady was born in Talbot co., Md, May 12, 1824, of Irish and English ancestry. His father, Daniel Deady, was a native of Kanturk, Ireland, and was a teacher by profession. When a young man he came to Baltimore, Md, where he soon married. After a few years' residence in the city he removed to Wheeling, Va, and again in 1837 to Belmont co., Ohio. Here the son worked on a farm until 1841. For four years afterward he learned blacksmithing, and attended school at the Barnesville academy. From 1845 to 1848 he taught school and read law with Judge William Kennon, of St Clairsville, where he was admitted to the bar of the supreme court of Ohio, Oct. 26, 1847. In 1849 he came to Oregon, settling at Lafayette, in Yamhill co., and teaching school until the spring of 1850, when he commenced the practice of the law, and in June of the same year was elected a member of the legislature, and served on the judiciary committee. In 1851 he was elected to the council for two years, serving as chairman of the judiciary committee and president of the council. In 1853 he was appointed judge of the territorial supreme court, and held the position until Oregon was admitted into the Union, February 14, 1859, and in the mean time performed the duties of district judge in the southern district. He was a member of the constitutional convention of 1857, being president of that body. His influence was strongly felt in forming the constitution, some of its marked features being chiefly his work; while in preventing the adoption of other measures he was equally serviceable. On the admission of Oregon to statehood he was elected a judge of the supreme court from the southern district without opposition, and also received the appointment of U. S. district judge. He accepted the latter position and removed to Portland, where he has resided down to the present time, enjoying the confidence and respect paid to integrity and ability in office.   During the years 1862–4, Judge Deady prepared the codes of civil and criminal procedure and the penal code, and procured their passage by the legislature as they came from his hand, besides much other legislation, including the general incorporation act of 1862, which for the first time in the U. S. made incorporation free to any three or more persons wishing to engage in any lawful enterprise or occupation. In 1864 and 1874 he made and published a general compilations of the laws of Oregon.   He was one of the organizers of the University of Oregon, and for over twelve years has been an active member of the board of regents and president of that body. For twenty years he has been president of the Library Association of Portland, which under his fostering care has grown to be one of the moot creditable institutions of the state.   On various occasions Judge Deady has sat in the U. S. circuit court in San Francisco, where he has given judgment in some celebrated cases; among them are McCall v. McDowell, 1 Deady, 233, in which he held that the president could not suspend the habeas corpus act, the power to do so being vested in congress; Martinetti v. McGuire, 1 Deady, 216, commonly called the Black Crook case, in which he held that this spectacular exhibition was not a dramatic composition, and therefore not entitled to copyright; Woodruff v. N. B. Gravel Co., 9 Sawyer, 441, commonly called the Debris case, in which it was held that the hydraulic miners had no right to deposit the waste of the mines in the watercourses of the state to the injury of the riparian owners; and Sharon v. Hill, 11 Sawyer, 290, in which it was determined that the so-called marriage contract between these parties was a forgery.  

   On the 24th of June, 1852, Judge Deady was married to Miss Lucy A. Henderson, a daughter of Robert and Rhoda Henderson, of Yamhill co., who came to Oregon by the southern route in 1846. Mr Henderson was born in Green co., Tenn., Feb. 14, 1809, and removed to Kentucky in 1831, and to Missouri in 1834. Mrs Deady is possessed of many charms of person and character, and is distinguished for that tact which renders her at ease in all stations of life. Her children are three sons, Edward Nesmith, Paul Robert, and Henderson Brooke. The first two have been admitted to the bar, the third is a physician.

   Scattered throughout this history, and elsewhere, are the evidences of the manner in which Judge Deady has impressed himself upon the institutions of Portland and the state, and always for their benefit. He possesses, with marked ability, a genial disposition, and a distinguished personal appearance, rather added to than detracted from by increasing years.

9. Judge Bryant selected and purchased $2,000 worth of the books for the public library, and Gov. Gaines the remainder.
10. The Gaines clique also denominated the Iowa code, adopted in 1849, the steamboat code, and invalid because it contained more than one subject.
11. It named three commissioners, each for the state-house and penitentiary, authorizing them to select one of their number to be acting commissioner and give bonds in the sum of $20,000. The state-house board consisted of John Force, H. M. Waller, and R. C. Geer; the penitentiary board, D. H. Lownsdale, Hugh D. O'Bryant, and Lucius B. Hastings. The prison was to be of sufficient capacity to receive, secure, and employ 100 convicts, to be confined in separate cells. Or. Spectator, March 27, 1851; Or. Statutes, 1853–4, 509. That Oregon City should get nothing under the embarrassment of the 11th section of the donation law was natural, but the whigs and the property-owners there may have hoped to change the action of congress in the event of securing the capital. Salem, looking to the future, was a better location. But the assembly were not, I judge, looking to anything so much as having their own way. The friends of Salem were accused of bribery, and there were the usual mutual recriminations. Or. Spectator, Oct. 7 and Nov. 18, 1851.
12. Id., July 29, 1851; Or. Statesman, Aug. 5, 1851; 32d Cong., 1st Sess., H. Ex. Doc. 94, 2–32; Id., 96, vol. ix. 1–8; Id., 104, vol. xii. 1–24; 32d Cong., 1st Sess., H. Misc. Doc. 9, 4–5.
13. The Oregonian was founded by T. J. Dryer, who had been previously engaged upon the California Courier as city editor, and was a weekly journal. Dryer brought an old Ramage press from San Francisco, with some second-hand material, which answered his purpose for a few months, when a new Washington press and new material came out by sea from New York, and the old one was sent to Olympia to start the first paper published on Puget Sound, called the Columbian. In time the Washington press was displaced by a power press, and was sold in 1862 to go to Walla Walla, and afterward to Idaho. Dryer conducted the Oregonian with energy for ten years, when, the paper passed into the hands of H. L. Pittock, who first began work upon it as a printer in 1853. It has since become a daily, and is edited and partly owned by Harvey W. Scott.

    The Statesman was founded by A. W. Stockwell and Henry Russel of Massachusetts, with Asahel Bush as editor. It was published at Oregon City till June 1853, when it was removed to Salem, and being and remaining the official paper of the territory, followed the legislature to Corvallis in 1855, when the capital was removed to that place and back again to Salem, when the seat of government was relocated there a few months later. As a party paper it was conducted with greater ability than any journal on the Pacific coast for a period of about a dozen years. Bush was assisted at various times by men of talent. On retiring from political life in 1863 he engaged in banking at Salem. Crandall and Wait then conducted the paper for a short time; but it was finally sold in November 1863 to the Oregon Printing and Publishing Company. In 1866 it was again, sold to the proprietors of the Unionist, and ceased to exist as the Oregon Statesman. During the first eight years of its existence it was the ruling power in Oregon, wielding an influence that made and unmade officials at pleasure. 'The number of those who were connected with the paper as contributors to its columns, who have risen to distinguished positions, is reckoned by the dozen.' Salem Directory, 1871; Or. Statesman, March 28, 1851; Id., July 25, 1854; Brown's Will. Val., MS., 34; Portland Oregonian, April 15, 1876. Before either of these papers was started there was established at Milwaukie, a few miles below Oregon City, the Milwaukie Star, the first number of which was issued on the 21st of November 1850. It was owned principally by Lot Whitcomb, the proprietor of the town of Milwaukie. The prospectus stated that Carter and Waterman were the printers, and Orvis Waterman editor. The paper ran for three months under its first management, then was purchased by the printers, and in May 1851 Waterman purchased the entire interest, when he removed the paper to Portland, calling it the Times. It survived several subsequent changes and continued to be published till 1864, recording in the mean time many of the early incidents in the history of the country. Portland Oregonian, April 15, 1876.

14. The Spectator of Feb. 20, 1851, rebuked the assembly for its discourtesy, saying it knew of no other instance where the annual message of the governor had been treated with such contempt.
15. The Spectator of August 8, 1850, remarked that there existed no law in the territory regulating marriages. If that were true, there could have existed none since 1845, when the last change in the provisional code was made. There is a report of a debate on 'a bill concerning marriages,' in the Spectator of Jan. 2, 1851, but the list of laws passed at the session of 1850–1 contains none on marriage. A marriage law was enacted by the legislature of 1851–2. Among men inclined from the condition of society to early marriages, as I have before mentioned, the wording of the donation law stimulated the desire to marry in order to become lord of a mile square of land, while it influenced women to the same measure, as it was only a wife or widow who was entitled to 320 acres. Many unhappy unions were the consequence, and numerous divorces. Deady's Hist. Or., MS., 33; Victor's New Penelope, 19–20.
16. Public Life in Oregon is one of the most scholarly and analytical contributions to history which I was able to gather during my many interviews of 1878. Besides being in a measure a political history of the country, it abounds with life-like sketches of the public men of the day, given in a clear and fluent style, and without apparent bias. L. F. Grover, the author, was born at Bethel, Maine, Nov. 29, 1823. He came to California in the winter of 1850, and to Oregon early in 1851. He was almost immediately appointed clerk of the first judicial district by Judge Nelson. He soon afterward received the appointment of prosecuting attorney of the second judicial district, and became deputy United States district attorney, through his law partner, B. F. Harding, who held that office. Thereafter for a long period he was in public life in Oregon. Grover was a protegé of Thurston, who had known him in Maine, and advised him when admitted to the bar in Philadelphia to go to Oregon, where he would take him into his own office as a law-partner; but Thurston dying, Grover was left to introduce himself to the new commonwealth, which he did most successfully. Grover's Pub. Life in Or., MS., 100–3; Yreka Union, April 1, 1870.
17. A. C. Gibbs in his notes on Or. Hist., MS., 13, says that he urged the measure and succeeded in getting it through the house. It was supported by Deady, then president of the council; and thus the code system was begun in Oregon with reformed practice and proceedings. At the same time, Thurston, it is said, when in Washington, advised the appointment of commissioners for this purpose, or that the assembly should remain in session long enough to do the work, and promised to secure from congress the money, $6,000, to pay the cost.
18. Or. Statutes, 1852–3, 57–8; Or. Statesman, Feb. 5, 1853.
19. See Or. Gen. Laws, 1843–72.
20. Eugene City Guard, July 8, 1876; Eugene City State Journal, July 8, 1876.
21. It is difficult determining the value of these enactments, when for several sessions one after the other acts with the same titles appear—instance the county seat of Polk county, which was located in 1849 and again in 1850.
22. Deady's Scrap Book, 5. For some years Matthew P. Deady employed his leisure moments as a correspondent of the San Francisco Bulletin, his subjects often being historical and biographical matter, in which he was, from his habit of comparing evidence, very correct, and in which he sometimes enunciated a legal opinion. His letters, collected in the form of a scrap-book, were kindly loaned to me. From these Scraps I have drawn largely; and still more frequently from his History of Oregon, a thick manuscript volume given to me from his own lips in the form of a dictation while I was in Portland in 1878, and taken down by my stenographer. Never in the course of my life have I encountered in one mind so vast, well arranged, and well digested a store of facts, the recital of which to me was a never failing source of wonder and admiration. His legal decisions and public addresses have also been of great assistance to me, being free from the injudicial bias of many authors, and hence most substantial material for history to rest upon. Further than this, Judge Deady is a graceful writer, and always interesting. As a man, he is one to whom Oregon owes much.
23. Or. Gen. Laws, 1850–1, 158–164.
24. This was a scheme of Thurston's, who, on the citizens of Astoria petitioning congress to open a road to the Willamette, proposed to accept $10,000 to build the bridges, promising that the people would build the road. He then advised the legislature to go on with the location, leaving it to him to manage the appropriations. Lane finished his work in congress, and a government officer expended the appropriation without benefiting the Astorians beyond disbursing the money in their midst. See 31st Cong., 1st Seas., H. Com. Rept., 348, 3.
25. 32d Cong., 1st Sess., H. Jour., 1059, 1224.
26. The writer signed himself 'Lansdale,' but was probably J. Quinn Thornton, who admits writing such letters to get Lane removed, but gives a different sobriquet as I have already mentioned—that of 'Achilles de Harley.'
27. Memorial of the Legislative Assembly of 1851–2, in 32d Cong., 1st Sess., H. Misc. Doc., ix. 2–3. Thomas Nelson was born at Peekskill, New York, January 23, 1819. He was the third son of William Nelson, a representative in congress, a lawyer by profession, and a man of worth and public spirit. Thomas graduated at Williams college at the age of 17. Being still very young he was placed under a private tutor of ability in New York city, that he might study literature and the French language. He also attended medical lectures, acquiring in various ways thorough culture and scholarship, after which he added European travel to his other sources of knowledge, finally adopting law as a profession. Advancing in the practice of the law, he became an attorney and counsellor of the supreme court of the United States, and was practising with his father in Westchester county, New York, when he was appointed chief justice of Oregon. Judge Nelson's private character was faultless, his manners courteous, and his bearing modest and refined. Livingston's Biog. Sketches, 69–72; S. R. Thurston, in Or. Spectator, April 10, 1851.
28. Strong's Hist. Or., MS., 14. On the 7th of January 1851 William Hamilton was shot and killed near Salem by William Kendall on whose land claim he was living. A special term of court was held on the 28th of March to try Kendall, who was defended by W. G. T'Vault and B. F. Harding, convicted, sentenced by Judge Strong, and executed on the 18th of April, there being at the time no jail in which to confine criminals in Marion county. About the same time a sailor named Cook was shot by William Keene, a gambler, in a dispute about a game of ten-pins. Keene was also tried before Judge Strong, convicted of manslaughter, and sentenced to six years in the penitentiary. As the jury had decided that he ought not to hang, and he could not be confined in an imaginary penitentiary, he was pardoned by the governor. Or. Statesman, May 16, 1851. Creed Turner a few months after stabbed and killed Edward A. Bradbury from Cincinnati, Ohio, out of jealousy, both being in love with a Miss Bonser of Sauvé Island. Deady defended him before Judge Pratt, but he was convicted and hanged in the autumn. Id., Oct. 28, 1851; Deady's Hist. Or., MS., 59. In Feb. 1852 William Everman, a desperate character, shot and killed Serenas C. Hooker, a worthy farmer of Polk county, for accusing him of taking a watch. He also was convicted and hanged. He had three associates in crime, Hiram Everman, his brother, who plead guilty and was sentenced to three years in the penitentiary; Enoch Smith, who escaped by the disagreement of the jury, was rearrested, tried again, sentenced to death, and finally pardoned; and David J. Coe, who by obtaining a change of venue was acquitted. As there was no prison where Hiram Everman could serve, he was publicly sold by the sheriff on the day of his brother's execution, to Theodore Prather, the highest bidder, and was set at liberty by the petition of his master just before the expiration of the three years. Smith took a land-claim in Lane county, and married. After several years his wife left him for some cause unknown. He shot himself in April 1877, intentionally, as it was believed. Salem Mercury, April 18, 1877. About the time of the former murder, Nimrod O'Kelly, in Benton county, killed Jeremiah Mahoney, in a quarrel about a land-claim. He was sentenced to the penitentiary and pardoned. In August, in Polk county, Adam E. Wimple, 35 years of age, murdered his wife, a girl of fourteen, setting fire to the house to conceal his crime. He had married this child, whose name was Mary Allen, about one year before. Wimple was a native of New York. S. F. Alta, Sept. 28, 1852. He was hanged at Dallas October 8, 1852. Or. Statesman, Oct. 23, 1852. Robert Maynard killed J. C. Platt on Rogue River for ridiculing him. He was executed by vigilants. Before the election of officers for Jackson county, one Brown shot another man, was arrested, tried before W. W. Fowler, temporarily elected judge, and hanged. Prim's Judic. Affairs in Southern Or., MS., 10. In July 1853, Joseph Nott was tried for the murder of Ryland D. Hill whom he shot in an affray in Umpqua county. He was acquitted. Many lesser crimes appear to have been committed, such as burglary and larceny; and frequent jail deliveries were effected, these structures being built of logs and not guarded. In two years after the discovery of gold in California, Oregon had a criminal calender as large in proportion to the population as the older states.
29. Or. Statesman, Aprul 11, 1851. Among those taking part in this meeting were W. W. Chapman, D. H. Lounsdale, H. D. O'Bryant, J. S. Smith, Z. C. Norton, S. Coffin, W. B. Otway, and N. Northrop.
30. Cong. Globe, 1849–50, 1079, 1091.
31. By a curious coincidence one of the banished negroes was Winslow, the culprit in the Oregon City Indian affair of 1844, who had lived since then at the mouth of the Columbia. Vanderpool was the other exile. S. F. Alta, Sept. 16, 1851; Or. Statesman, Sept. 2, 1851.
32. There were 30 indictments in Yamhill county alone, a large proportion being for breach of verbal contract. Six were for selling liquor to Indians, being federal cases.
33. Logan was born in Springfield, Ill., in 1824. His father was an eminent lawyer, and at one time a justice of the supreme court of Illinois. David immigrated to Oregon in 1850 and settled at Lafayette. He ran against Deady for the legislature in 1851 and was beaten. Soon after he removed to Portland, where he became distinguished for his shrewdness and powers of oratory, being a great jury lawyer. He married in 1862 Mary P. Waldo, daughter of Daniel Waldo. His highly excitable temperament led him into excesses which injured his otherwise eminent standing, and cut short his brilliant career in 1874. Salem Mercury, April 3, 1874.
34. The practising attorneys at this time were A. L. Lovejoy, W. G. T'Vault, J. Quinn Thornton, E. Hamilton, A. Holbrook, Matthew P. Deady, B. F. Harding, R. P. Boise, David Logan, E. M. Barnum, J. W. Nesmith, A. D. M. Harrison, James McCabe, A. C. Gibbs, S. F. Chadwick, A. B. P. Wood, T. McF. Patton, F. Tilford, A. Campbell, D. B. Brenan, W. W. Chapman, A. E. Wait, S. D. Mayre, John A. Anderson, and C. Lancaster. There were others who had been bred to a legal profession, who were at work in the mines or living on land claims, some of whom resumed practice as society became more organized.
35. W. W. Chapman for contempt of court was sentenced by Pratt to twenty days imprisonment and to have his name stricken from the roll of attorneys. It was a political issue. Chapman was assisted by his Portland friends to escape, was rearrested, and on application to Judge Nelson discharged on a writ of error. 32d Cong., 1st Sess., Misc. Doc. 9, 3. See also case of Arthur Fayhie sentenced by Pratt for contempt, in which Nelson listened to a charge by Fayhie of misconduct in office on the part of Pratt, and discharged the prisoner by the advice of Strong.
36. An example of the discourtesy used toward the federal officers was given when the governor was bereaved of his wife by an accident. Mrs Gaines was riding on the Clatsop plains, whither she had gone on an excursion, when her horse becoming frightened at a wagon she was thrown under the wheels, receiving injuries from which she died. The same paper which announced her death attacked the governor with unstinted abuse. Mrs Gaines was a daughter of Nicholas Kincaid of Versailles, Ky. Her mother was Priscilla McBride. She was born March 13, 1800, and married to Gaines June 22, 1819. Or. Spectator, Aug. 19, 1851. About fifteen months after his wife's death, Gaines married Margaret B. Wands, one of the five lady teachers sent to Oregon by Gov. Slade. Or. Statesman, Nov. 27, 1851.
37. Mrs M. E. Wilson in Or. Sketches, MS., 19.
38. Here is what one says of Oregon City society at the time: All was oddity. 'Clergymen so eccentric as to have been thrown over by the board on account of their queerness, had found their way hither, and fought their way among peculiar people, into positions of some kind. People were odd in dress as well. Whenever one wished to appear well before his or her friends, they resurrected from old chests and trunks clothes made years ago. Now, as one costumer in one part of the world at one time, had made one dress, and another had made at another time another dress, an assembly in Oregon at this time presented to a new-comer, accustomed to only one fashion at once, a peculiar sight. Mrs Walker, wife of a missionary at Chimikane, near Fort Colville, having been 11 years from her clothed sisters, on coming to Oregon City was surprised to find her dresses as much in the fashion as any of the rest of them.' Mrs Wilson, Or. Sketches, MS., 16, 17. Another says of the missionary and pioneer families: 'One lady who had been living at Clatsop since 1846 had a parasol well preserved, at least 30 years old, with a folding handle and an ivory ring to slip over the folds when closed. Another lady had a bonnet and shawl of nearly the same age which she wore to church. All these articles were of good quality, and an evidence of past fashion and respectability.' Manners as well as clothes go out of mode, and much of the oddity Mrs Wilson discovered in an Oregon assembly in Gov. Gaines' time was only manners out of fashion.
39. Or. Spectator, July 29, 1851; Or. Statesman, Aug. 5, 1851.
40. Or. Gen. Laws, 1845–1864, 71.
41. The council was composed of Matthew P. Deady, of Yamhill; J. M. Garrison, of Marion; A. L. Lovejoy, of Clackamas; Fred. Waymire, of Polk; W. B. Mealey, of Linn; Samuel Parker, of Clackamas and Marion; A. L. Humphrey, of Benton; Lawrence Hall, of Washington; Columbia Lancaster, of Lewis, Clark, and Vancouver counties. The house consisted of Geo. L. Curry, A. E. Wait, and W. T. Matlock, of Clackamas; Benj. Simpson, Wilie Chapman, and James Davidson, of Marion; J. C. Avery and Geo. E. Cole, of Benton; Luther White and William Allphin, of Linn; Ralph Wilcox, W. M. King, and J. C. Bishop, of Washington; A. J. Hembree, Samuel McSween, and R. C. Kinney, of Yamhill; Nat Ford and J. S. Holman of Polk; David M. Risdon, of Lane; J. W. Drew, of Umpqua; John A. Anderson and D. F. Brownfield of Clatsop and Pacific. Or. Statesman, July 4, 1851.
42. In style Lancaster was something of a Munchausen. 'It it true,' he says in his memorial, which must indeed have astonished congress, 'that the Columbia River, like the principles of civil and religious equality, with wild and unconquerable fury has burst asunder the Cascade and Coast ranges of mountains, and shattered into fragments the basaltic formations,' etc. 32d Cong., 1st Sess., H. Misc. Doc. 14, 1–5; Or. Stateman, Jan. 13, 1852. 'Basaltic formation' then became a sobriquet for the whig councilman among the Salem division of the legislature. The memorial was signed 'Columbia Lancaster, late president pro tem. of the council, and W. T. Matlock, late speaker pro tem. of the house of representatives.'
43. Francis Ermatinger being cited to appear in a case brought against him at Oregon City, objected to the hearing of the cause upon the ground that the law required a majority of the judges of the court to be present at the seat of government, which was at Salem. The chief justice said in substance: 'By the act of coming here we have virtually decided this question.' Or. Spectator, Dec. 2, 1851.
44. The principal persons in the transactions of the indignation meeting were J. B. Chapman, M. T. Simmons, D. F. Brownfield, W. P. Dougherty, E. Sylvester, Thos. W. Glasgow, and James McAllister. Or. Statesman, Dec. 2, 1851.
45. Or. Statesman, Feb. 3, 1852.
46. Or. Council, Jour. 1851–2, 10.
47. Or. Council, Jour. 1851–2, 12–13. This committee appears to have been intended to draft a memorial on general subjects, as the memorial concerning the interference of the governor and the condition of the judiciary was drawn by a different committee.
48. The Statesman of July 3d remarked: 'The territorial library, the gift of congress to Oregon, became the property, to all intents and purposes, of the federal clique, who refused to allow the books to be removed to Salem, and occupied the library room daily with a librarian of the governor's appointing.' A full account of the affair was published in a little sheet called Vox Populi, printed at Salem, and devoted to legislative proceedings and the location question. The first number was issued on the 18th of December 1851. The standing advertisement at the head of the local column was as follows: 'The Vox Populi will be published and edited at Salem, O. T., during the session of the legislative assembly by an association of gentlemen.' This little paper contained a great deal that was personally disagreeable to the federal officers.
49. Deady's Hist. Or., MS., 27–8; Strong's Hist. Or., MS., 62–3; Grover's Pub. Life in Or., MS., 53.
50. The postal agent was Nathaniel Coe, who was made the subject of invidious remark, being a presidential appointee.
51. The boundaries are not given in the reports. They were subsequently changed when Washington was set off. See Or. Local Laws, 1851–2, 13–15, 30; New Tacoma North Pacific Coast, Dec. 15, 1879.
52. A resolution was passed by the assembly that the surveyor-general be required to take measures to ascertain whether the town known as Shasta Butte City (Yreka) was in Oregon or not, and to publish the result of his observations in the Statesman. Or. Council, Jour. 1851–2, 53.
53. The first term of the United States district court held at the new court-house in Cyntheann was in October 1851. At this term James McCabe, B. F. Harding, A. B. P. Wood, J. W. Nesmith, and W. G. T'Vault were admitted to practice in the Second Judicial district. McCabe was appointed prosecuting attorney, Holbrook having gone on a visit to the States. J. W. Nesmith was appointed master and commissioner in chancery, and J. H. Lewis commissioner to take bail. Lewis, familiarly known as 'Uncle Jack,' came to Oregon in 1847 and settled on La Creole, on a farm, later the property of John M. Scott, on which a portion of the town of Dallas is located. Upon the resignation of H. M. Weller, county clerk, in August 1851, Lewis was appointed in his place, and subsequently elected to the office by the people. His name is closely connected with the history of the county and of Dallas. The first term of the district court held in any part of southern Oregon was at Yoncalla, in the autumn of 1852. Gibbs' Notes, MS., 15. The first courts in Jackson county about 1851–2 were held by justices of the peace called alcaldes, as in California. Rogers was the first, Abbott the second. It was not known at this time whether Rogue River Valley fell within the limits of California or Oregon, and the jurisdiction being doubtful the miners improvised a government. See Popular Tribunals, vol. i., this series; Prim's Judicial Affairs, MS., 7–10; Jacksonville Dem. Times, April 8, 1871; Richardson's Mississippi, 407; Overland Monthly, xii. 225–30. Pratt left Oregon in 1856 to reside in Cal. He had done substantial pioneer work on the bench, and owing to his conspicuous career he had been criticised—doubtless through partisan feeling.
54. For act see Or. Statesman, Feb. 3, 1852.
55. Trustees of Oregon academy: Ahio S. Watt, R. P. Boise, James McBride, A. J. Hembree, Edward Geary, James W. Nesmith, Matthew P. Deady, R. C. Kinney, and Joel Palmer. Or. Local Laws, 1851–2, 62–3. The Methodist church in Oregon City was incorporated in May 1850.
56. Ludwell Rector was elected. The former librarian was a young man who came out with Gaines, and placed in that position by him while he held the clerkship of the surveyor-general's office, and also of the supreme court. Or. Statesman, Feb. 3, 1852.
57. See memorial of J. A. Anderson of Clatsop County in Or. Statesman, Jan. 20, 1852.
58. J. D. Boon was a Wesleyan Methodist preacher, a plain, unlearned man, honest and fervent, an immigrant of 1845. He was for many years a resident of Salem, and held the office of treasurer for several terms. Deady's Scrap Book, 87.
59. There were in this legislature a few not heretofore specially mentioned. J. M. Garrison, one of the men of 1843, before spoken of, was born in Indiana in 1813, and was a farmer in Marion county. Wilie Chapman, also of Marion, was born in South Carolina in 1817, reared in Tenn., and came to Oregon in 1847. He kept a hotel at Salem. Luther White, of Linn, preacher and farmer, was born in 1797 in Ky, and immigrated to Oregon in 1847. A. J. Hembree, of the immigration of 1843, was born in Tenn. in 1813; was a merchant and farmer in Yamhill. James S. Holman, an immigrant of 1847, was born in Tenn. in 1813; a farmer in Polk. David S. Risdon was born in Vt in 1823, came to Oregon in 1850; lawyer by profession. John A. Anderson was born in Ky in 1824, reared in north Miss., and came to Oregon in 1850; lawyer and clerk in the custom-house at Astoria. James Davidson, born in Ky in 1792; emigrated thence in 1847; housejoiner by occupation. George E. Cole, politician, born in New York in 1820; emigrated thence in 1850 by the way of California. He removed to Washington in 1858, and was sent as a delegate to congress; but afterward returned to Oregon, and held the office of postmaster at Portland from 1873 to 1881.
60. Applegate's Views of Hist., MS., 48. Gaines assaulted Bush in the street on two occasions; once for accidentally jostling him, and again for something said in the Statesman. See issues of Jan. 27th and June 29, 1852. A writer calling himself 'A Kentuckian' had attacked the governor's exercise of the pardoning power in the case of Enoch Smith, reminding his excellency that Kentucky, which produced the governor, produced also nearly all the murderers in Oregon, namely, Keen, Kendall, Turner, the two Evermans, and Smith. 'Common sense, sir,' said this correspondent, 'should teach you that the prestige of Kentucky origin will not sustain you in your mental imbecility; and that Kentucky aristocracy, devoid of sense and virtue, will not pass current in this intelligent market.' Or. Statesman, June 15, 1852.
61. John P. Gaines was born in Augusta, Va, in September 1795, removing to Boone county, Ky, in early youth. He volunteered in the war of 1812, being in the battle of the Thames and several other engagements. He represented Boone county for several years in the legislature of Ky, and was subsequently sent to congress from 1847 to 1849. He was elected major of the Ky cavalry, and served in the Mexican war until taken prisoner at Encarnacion. After some months of captivity he escaped, and joining the army served to the end of the war. On his return from Mexico, Taylor appointed him governor of Oregon. When his term expired he retired upon a farm in Marion county, where he resided till his death in December 1857. S. F. Alta, Jan. 4, 1858.
62. Or. Statesman, Nov. 6, 1852; Id., Feb. 26, 1853. Whether or not this was true, Lane procured an amendment to the former acts of congress in order to make up the deficiency said to have been occasioned by the alteration of the certificates. Cong. Globe, 1852–3, app. 341; 33d Cong., 1st Sess., H. Com. Rept. 122, 4–5.
63. Memorial, in 32d Cong., 1st Sess., H. Misc. Doc. 9, 2; Or. Statesman, May 18, 1852.
64. The ridicule, however, was not all on one side. There appeared, in the Oregonian, and afterward in pamphlet form, with a dedication to the editors of Vox Populi, a satire written in dramatic verse, and styled a Melodrama, illustrated with rude wood-cuts, and showing considerable ability both for composition and burlesque. This publication, both on account of its political effect and because it was the first book written and published in Oregon of an original nature, deserves to be remembered. It contained 32 double-columned pages, divided into five acts. The persons satirized were Pratt, Deady, Lovejoy, King, Anderson, Avery, Waymire, Parker, Thornton, Willson, Bush, Backenstos, and Waterman of the Portland Times. The author was William L. Adams, an immigrant of 1848, a native of Painesville, Ohio, where he was born Feb. 1821. His parents removed to Michigan in 1834. In 1835 Adams entered college at Canton, Ill.; going afterward to Galesburg, supporting himself by teaching in the vacations. He finished his studies at Bethany College, Va, and became a convert to the renowned Alexander Campbell. In 1845 he married Olivia Goodell, a native of Maine, and settled in Henderson County, Ill., from which state he came to Oregon. He taught school in Yamhill county, and was. elected probate judge. He was offered a press at Oregon City if he would establish a whig newspaper at that place, which he declined; but in 1858 he purchased the Spectator press and helped materially to found the present republican party of Oregon. He was rewarded with the collectorship at Astoria under Lincoln. Portland West Shore, May, 1876.
65. 32d Cong., 1st Sess., S. Jour., 339; Cong. Globe, 1851–2, 451, 771; 32d Cong., 1st Sess., H. Misc. Doc. 10; 32d Cong., 1st Sess., H. Ex. Doc. 94, 29.
66. 32d Cong., 1st Sess., H. Ex. Doc. 94, 1–2; and Id., 96, 1–8; Location Law, 1–39. The Location Law is a pamphlet publication containing the documents on this subject.
67. Cong. Globe, 1851–2, 1199, 1209; 32d Cong., 1st Sess., S. Jour., 394; Or. Statesman, June 29, 1852; Or. Gen. Laws, 1854–64, 71.
68. 32d Cong., 1st Sess., Cong. Globe, 1851–2, 1594.