Portland, Oregon: Its History and Builders/Volume 1/Chapter 26
CHAPTER XXVI.
1845—1910.
Government and laws took root and were established and enforced in the organization of society in Oregon without the aid of lawyers. There was not a single lawyer in the convention that decided in favor of and organized the provisional government which is described at length in chapter VII of this book. The first intimation of laws, authority or courts in the vast district west of the Rocky mountains was an act of the British parliament extending to English subjects on the Pacific coast the protection of the laws of Great Britain; and under which three justices of the peace—all British subjects—were appointed. The British had in fact no sovereignty of the country authorizing such action; but the act did not pretend to include in either its protection or control, citizens of the United States.
The first movement of American citizens to provide the protection of law, or of judicial action, was a public meeting of the American settlers in the Willamette valley held at the American mission house in the prairie seven or eight miles north of where the state capital is now built. This meeting was held on the 18th day of February, 1841; and at which meeting I. L. Babcock was chosen and elected by the settlers to fill the office of "supreme judge," and instructed to exercise the powers of a probate judge. Detailing the history of this meeting, W. H. Gray in his history of Oregon says that Babcock "was lawmaker, judge, jury and executioner, as much as John McLoughlin was to the Hudson's Bay Company." I. L. Babcock was not a lawyer, but is recorded in the history of that day as a doctor.
Politics, scheming for advancement and advantages, seems to be almost universally associated in the American mind with government. And this first meeting of two or three dozen scattered settlers to set up a government to rule the whole of Oregon, was no exception to the rule. The first act of the meeting and the first proposition for adoption was the appointment of a committee to form a constitution and draft a code of laws. It could hardly be said that the convention was packed, "for there were not enough people all told to make a pack." But the initial step had been prepared before the settlers got together, and came up in the form of a resolution designating the men to compose the committee on constitution and laws. This first committee to form a government was to be Rev. F. N. Blanchet, Rev. Jason Lee, and Rev. Gustavus Hines. This was too many preachers for the farmer settlers, and they bolted the proposition and finally got on another preacher—Rev. J. L. Parish—and five farmers: D. Donpierre, M. Charlevo, Robert Moore, Etienne Lucier and William Johnson.
That was the first effort at lawmaking in Oregon. But it fell as a dead letter on the settlements. The Hudson's Bay Company and Catholic priest influence discouraged the movement; and the Americans were not yet ready for it. Judge
Babcock never held any courts. A small "tempest in a teapot" was raised over the office of governor. Mr. Gray, in his history, reports that there were four candidates for the office of governor; Rev. David Leslie, Rev. Gustavus Hines, and Doctors Babcock and Bailey. Hines was the prominent candidate, and the first to enter the field. The office of governor was the leading ques- tion. Bailey could not be trusted, and Hines could not be elected. Bailey nominated himself and disgusted the meeting; and then, by common con- sent, the office of governor was discarded. And so this first effort at lawmaking failed because of personal and selfish interests and ambitions. There were no lawyers in the country and no law books, although the settlers' meeting had in- structed their doctor, Judge Babcock, to administer law according to the statutes of the state of New York.
As might easily be concluded from this brief statement, the attempt to form a government in 1841 failed. The next attempt to organize a bona fide govern- ment with laws and officials to enforce its authority, took place at Champoeg on the east bank of the Willamette river, twenty miles or so above Oregon City. Here the settlers met in pursuance of previous notice, and after organizing the meeting of 102 men, they took a vote by dividing ofi^ into two lines, to decide whether they would organize a government or not. Organization was opposed by the Catholics and the employes of the Hudson's Bay Company under the lead of the Rev. F. N. Blanchet, and favored by the Methodist missionaries and American settlers and a few members of the Catholic church. On the final vote the proposition to organize was carried by the close vote of only two majority; the vote for organization being 52, and against organization 50. The details of the organization of this provisional government is given fully in chapter VII of this book, to which the reader is referred.
The first judge under the provisional government was A. E. Wilson selected to act as supreme judge of Oregon. Mr. Wilson was not a lawyer, but was an intelligent business man who did not seek the high office. He came to this distant region from Boston, Massachusetts, on the ship Chenamus with Capt. John H. Couch in the year 1842, and was left here by Captain Couch to sell out a stock of merchandise brought out by that ship ; and he was at Oregon City repre- senting the Boston owners of the goods when he was appointed supreme judge in 1843. But whether Judge Wilson ever performed any judicial service or held a court, is not mentioned in the record.
In May, 1844, Dr. Judge Babcock comes to the front again as a candidate before the people at a general election for officers in that year, for the office of supreme judge; and in the contest before the three or four hundred voters, de- feated J. W. Nesmith, Peter H. Burnett, P. G. Stewart, Osborn Russell and O. Johnson for the office. Babcock must have been quite a "vote getter" to have defeated Nesmith and Burnett. There were no political parties, direct primaries, conventions or assemblies in those days, and Babcock may have won on the tactics of "divide and conquer." He, however, did not wear his judicial robes very long, for in six months after his election he resigned the office and J. W. Nesmith was appointed. Nesmith held the first term of his court at Oregon City, in April, 1875; which was probably the first formal term of a court held west of the Rocky mountains. From this day on the courts of the provisional government were regularly held, and judicial functions regularly and duly exer- cised with aU due solemnities of the law.
James W. Nesmith, although not a lawyer, may properly be considered the first judge actually exercising judicial functions in all the regions west of the Rocky mountains, and north of old Mexico. Other men were called judges be- fore the date of his first term at Oregon City, but there is no evidence that any of them tried or decided any cases or exercised the ordinary functions of a court of record. There were justices of the peace at that time who disposed of all the disputes or offences coming within the purview of petty courts ; but even of their proceedings there is now no record to show v/hat they did.
Judge Nesmith was a man of great natural ability and native force ; and
withall, a man in official position possessed of the dignities befitting his position.
Off the bench and among his intimate friends he was a free joker and hale
fellow well met with the man he liked. A warm friend and active partisan, he
made both friends and enemies. But his principles and his character were above
reproach ; and his integrity in office, and in his private relations in society, was
unquestioned and unquestionable. He rose to be a powerful leader in the po-
litical life of the state. He served the people in the Indian wars with courage
and honor; and when promoted to the highest office the people could give him,
he maintained the honor of his state and the integrity of the national union with
that fidelity and ability that has rarely been equaled.
THE FIRST LAWYER.
The first lawyer to take a part in the affairs of Oregon was Asa Lawrence Lovejoy, who came to Oregon from Missouri in 1842. 'Mr. Lovejoy was born in Boston, Massachusetts, in 181 1, just one hundred years ago. He v^^ent to Missouri in 1840, but his health failing there he joined the emigrant train of Dr. White and came to Oregon. While carving his name on Independence rock near the Oregon trail, he was captured by the Sioux Indians, came near losing his scalp, and was only saved by some plainsmen rushing to his rescue and buy- ing his life with a few trinkets. His first employment in Oregon was in the service of Dr. McLoughlin, acting as the agent of McLoughlin in his dealings with the Americans. The most important act in his quarter of a century of activity in Oregon affairs, and one that will perpetuate his name for all future time, is the founding of the city of Portland. It was Lovejoy that acquired from the original claimant the land on which to found the city; and it was Lovejoy who first proposed and decided that a town should be built here, and commenced the surveys for it; and it was Lovejoy agreeing with Pettygrove that named the town "Portland." General Lovejoy, as he was called, was active in the forma- tion of the provisional government; and under it he was loan commissioner, ad- jutant general of the militia, member of the legislature, supreme judge, speaker of the house, school trustee, member of the council, postal agent of the United States, member of the constitutional convention, and a director of the East Side Railroad.
The next lawyer coming in after Lovejoy was Peter H. Burnett, who came in the emigration of 1843, from Weston, Missouri. Burnett had been district attorney in Missouri, had considerable property and was a man of large influence among his neighbors, both in Missouri and Oregon. And on the organization of the emigrant train of 1843, Burnett was chosen captain, and Nesmith orderly sergeant. Burnett was chosen supreme judge of Oregon under the provisional government in 1846; and when he opened his court at Oregon City on June 2 of that year, three attorneys were admitted to the bar — W. G. T'Vault, A. L. Lovejoy and Cyrus Olney, being the first lawyers admitted to the bar of Oregon. Judge Burnett did not pretend to live by the law or office holding, but devoted his time to his farm in Yamhill county. But notwithstanding this fact, when congress organized the territorial government Judge Burnett was appointed one of the first U. S. judges for the territory. But having made up his mind to go to California, he declined the federal judgship, went to California and was elected governor of that state, and finished his career as president of a San Francisco bank and died in 1882.
THE EVOLUTION OF STATUTORY LAW IN OREGON.
The three gentlemen above mentioned — Lovejoy, Nesmith and Burnett — were the leaders of the lawmaking department of the provisional government. There were other leading men of ability, too, other than these thr ee who took
an active and influential part in the government, but the shaping of the law was
practically left to the men named.
And it is a most interesting study to go over this early history of the coun- try, and see how these thoughtful and patriotic men evolved a system of laws and government out of the chaos and opposition that environed them, and per- fectly adapted the system to the safety and well being of the infant state. Much was proposed, and sometimes enacted, that was crude and impracticable. And this had to be cut away, little by little, and the method or the principle adopted, which their new and original experience had found to be necessary. And in this way, and by this lamp of experience, these pioneer founders of the state of Oregon carefully and almost painfully steadily groped their way from the po- sition of no law and no organization, to the sure and immovable foundation of a well organized government.
There was not only no law, but there were no law books in Oregon when the pioneers organized their government. And the very first act to provide for laws, rules of action, adopted by the legislative committee on June 27, 1844, shows the extreme care and the profound wisdom, also, of those men of slight education in taking the first step to lay down rules to bind themselves and their neighbors. Article III of section I of the judiciary act, provides: "that all the statute law of Iowa territory passed at the first session of the legislative assem- bly of said territory, and not of a local character, and not incompatible with the condition and circumstances of the country shall be the law of the government unless otherwise modified; and the common law of England and principles of equity not modified by the statutes of Iowa or of this government, and not in- compatible with its principles, shall constitute a part of the law of the land."
Neither Lycurgus or John Marshall could have improved on that. Our pio- neers were exceedingly careful that no one should misunderstand as to what was the law. The first declaration of the law was prepared by what was called the "legislative committee," appointed by the public meeting of the settlers at Cham- poeg, on May 2, 1843. This committee was composed of David Hill, Robert Shortess, Robert Newell, Alanson Beers, T. J. Hubbard, Wm. H. Gray, James O'Neil and Robert Moore ; and not a lawyer on the list. Their report to the subsequent public meeting of the settlers was adopted by the people — the first example of direct legislation in Oregon and the United States. But when a regu- larly elected legislature was convened two years later, to cure any doubt that the laws thus prepared by the legislative committee and adopted by the people were not of binding force, the legislature on August 12, 1845, passed an act re- enacting the laws that had been prepared by the legislative committee.
And thus matters stood until the first session of the legislature after the or- ganization of the territory by congress held at Oregon City, July 16, 1849, when on September 29th, an act was passed "to enact and cause to be published a code of laws." This code consisted of seventy-two acts selected from "the re- vised laws of Iowa of 1843," with some modifications, together with the original acts passed at the same session. The provision for its publication failed. In the spring of 1850 the newly arrived U. S. district attorney (Amory Holbrook) pronounced the act making the selections from the Iowa statutes void because it embraced more than one subject contrary to section 6 of the organic act of August 14, 1848; and to stigmatize the law and make his charge of multifarious- ness stick, he named it the "Steamboat Code"; it carried a miscellaneous cargo.
Then the question arose whether the Iowa laws of 1839 or those of 1843 were the laws of Oregon. Neither of them were ever published in Oregon, for want of a printing press. Some new copies of the laws existed, having been brought from Iowa. Both volumes of the different laws were bound in blue pasteboards, and as the 1839 book was smaller than the 1843 book, they came to be known and called the "big" and the "little" blue books. The disputes as to what was the law entered into politics, and the controversy raged from one end of Oregon to the other. Finally, the United States judges, Matthew P. Deady and 'Wil