Copyright 2000 - 2003 - Janine M. Bork
This page is part of the
Union County, OR AGHP
CHAPTER VI
President Taylor's Appointments of Territorial Officers - Their Arrival in the Territory - Mail Service and Steamers Between San Francisco and Portland - Passage of Donation Law - Titles to Private Land Claims - Publication of Western Star, Oregonian and Oregon Statesman - Session of Legislature, 1850-51 - Building of Steamer Lot Whitcomb - New Counties Organized - Remodeling Judicial Districts- Location of Public Buildings - Death of Samuel R. Thurston - Arrival of Chief Justice Nelson - The Oregon Party - Election of General Lane as Delegate to Congress - Seat of Government Controversy - Quorum Supreme Court Meets at Oregon City, and Decides It to be the Seat of Government - Judge Pratt Holds Supreme Court at Salem - In a Letter Dissents from Justices Nelson and Strong - Quorum of Legislative Assembly Meets at Salem - Session of 1851-52 - Minority at Oregon City - Thurston County Organized - President Filmore's Official Message on Capital Controversy - Congress Intervenes, Declares Salem the Seat of Government, and Ratifies Laws Passed Thereat, Session 1851-52 - Extra Session of Legislature - Renewed Personal Rancor Growing Out of Decision as to Iowa Laws in Force by Legislation of Provisional Government - Judge Deady's Historic Notice of "Steamboat Code" and the "Blue Books" - Progress of Settlements North of Columbia River - Legislation of 1852-53 - Creation of New Counties - Judicial Districts Reconstructed - Division of the Territory.
IN SEPTEMBER, 1849, President Zachary Taylor had appointed as officers for the territory: Major John P. Gaines of Kentucky, Governor; General Edward Hamilton of Ohio, Secretary; William Strong of Ohio, Associate Justice of territorial Supreme Court, in place of Peter H. Burnett, who had declined appointment tendered by President Polk. Those Federal officials, with their respective families, were tendered passage to San Francisco, via Cape Horn, in the store-ship Supply, then being fitted out at the Brooklyn navy yard for San Francisco, to transport supplies for the Pacific squadron, they providing themselves with private stores. That vessel, with the above-named party as passengers, sailed January 3, 1850. Upon arriving at San Francisco, they were transferred to the U.S. sloop-of-war Falmouth, abut to sail for the Columbia river, and reached Astoria August 14, 1850.
The territory had been without a governor since June 18, 1850. In consequence of impaired health, Chief Justice Bryant had resigned and been compelled to return to Indiana. Associate Justice O.C. Pratt had been called to San Francisco to sit in several admiralty causes, thus leaving the territory without a judge. Present in the territory were Secretary Pritchett, acting as governor, United States Marshal Meek, United States Attorney Holbrook, Collector of Customs Adair at Astoria. On the 19th of August, Governor Gaines entered upon the duties of Executive. The other officials who had accompanied at once assumed their respective offices.
(314)
For several years a contract had been in existence between the United States Postoffice Department and Howland and Aspinwall for the transportation of United States mails by steam vessels between Panama and Oregon, via some port in California. A temporary modification of service until six months' notice had been given by the Postmaster-General had been made: "North of San Francisco the service might be performed in sailing vessels instead of steamers, on condition that mails should be received and delivered as often as once a month 'at or near Klamath river;' and vessels were to touch at San Francisco, Monterey and San Diego free of cost to the government." Delegate Thurston became advised of such condition of the mail contract of the Pacific Mail Steamship Company; and at his instance the six months' notice of abrogation of the temporary modification was given by the Postmaster-General. The notice expired June 1, 1850, after which the Pacific Mail Steamship Company were under contract to carry mails by steamships north of San Francisco. In June, 1850, the steamer Carolina, Captain Whiting, arrived at Portland from San Francisco carrying United States mails and passengers. At irregular intervals, but as often as once a month, she was succeeded by the California, Sea Gull, Panama and Oregon. But not until March, 1851, on the arrival on the coast between San Francisco and Portland for the transportation of the United States mails and passengers.
The 27th of September, 1850, marks the date of the approval by the President of the Act of Congress entitled, "An Act to create the office of Surveyor-General, of the public lands in Oregon, and to provide for the survey and making donations to settlers of the said public lands," known as the "Oregon Land Bill" and usually termed the Donation Law.
What was the status of land titles in Oregon at the date of the passage of that law? The Organic Act (August 14, 1848) had made a definite grant to missionary societies for lands occupied at the date of the passage of that act; but the rights of settlers had been completely ignored. Happily, the condition of rights to soil vesting in the settler antecedent to the passage of the Donation Law had been judicially determined by the highest tribunal in the world, the most eminent judicial authority. In Hall vs. Russell (October term, 1879), Chief Justice Waite, in pronouncing the opinion of the Supreme Court of the United States, thus defined the situation:
"The anomalous condition of affairs
in Oregon Territory when this act was passed has been heretofore brought
to our attention. (Stark vs. Starrs, 6 Wall., 402; Lamb
vs. Davenport, 18 Wall., 307; Stark vs. Starrs, 94
U.S., 447; Barney vs. Dolph, 97 U.S., 654.) For many years,
the inhabitants had been without any government except that which they
had themselves organized for their own protection. The ownership of the
soil on which they lived was in dispute between the United States and great
Britain. Under the operation of treaty stipulations for the joint occupation
of the territory, extensive settlements had grown up; and the people in
governing themselves had adopted land laws which made occupancy the basis
of ownership between settlers. While waiting for the contesting sovereign
claimants to determine which of the two should be the acknowledged owner
of the soil, they contented themselves with regulating their rights of
occupancy as between each other, trusting to the bounty of the government
under whose sold dominion they should ultimately fall for a grant of title
to the land itself. The first of these acts was passed in 1844. ('Laws
of Oregon,' 1843 to 1849, 77.) Under this, only free males over the age
of eighteen, who would be entitled to vote if of lawful age, and widows,
were entitled to hold a 'claim' save that a married man under eighteen
was not debarred. A claim was also confined to 640 acres or less.
"Permanent improvements and continuous occupation and cultivation were essential to the preservation of the rights conferred. Following this was the 'land law,' contained in the Organic Law of the Provisional government, which went into operation in 1846. ('Territorial Statutes of Oregon,' 1851, 32, article three.) This law relaxed somewhat the stringency of the former act as to actual occupation, and extended the privilege of establishing claims to all residents of the territory. By the act of Congress creating a territorial government for Oregon (9 Stat., 323), approved August 14, 1848, all laws theretofore passed in the territory making grants of land, or otherwise affecting or incumbering the title of lands, were declared void; but all other laws in force under the authority of the Provisional government were continued in operation so far as they were not incompatible with the Constitution or the principles and provisions of that act. All laws passed by the legislative assembly of the territory were to be submitted to Congress, and, if disapproved, were to be null and void. (Section six.)
"Doubts having arisen whether, after the establishment of the territorial government, the land law of the Provisional government was in force, an act of the territorial legislature was passed September 22, 1849, expressly declaring it to be so; and some additional provisions were made consistent with the title of the new act, which as 'An Act to prevent injuries to the possessions of settlers on public lands.' ('Territorial Laws,' 1851, page 246.) By section five of this act, it was provided that 'land claims shall descend to, and be inherited by, the heirs-at-law of the claimant in the same manner as provided by law for the descent of real estate.' On the 26th of September, 1849, 'An Act respecting wills' was passed by the territorial legislature ('Territorial Statues,' 1851, 27.) By this act, every person of twenty-one years of age and upwards, of sound mind, might, by 'last will devise all his estate, real, personal and mixed, and all interest therein, leaving to the widow her dower.' Before the passage of the act of September 12th, if a person died in the lawful possession of a land claim, it formed part of his personal estate, and was to be disposed of by his executors or administrators for the benefit of his legal heirs. ('Laws of Oregon,' 1843 to 1849, page 61.)
"It was in the midst of this condition of affairs that the Donation Act was passed. Congress had the right, on assuming undisputed dominion over the territory, to confine its bounties to settlers within just such limits as it chose. The settlers had not title to the soil; and the legislation under the Provisional government, as well as that by the territorial legislature, had no other effect than to regulate possessory rights on the public domain in the absence of congressional interference."
In the case first cited (Stark vs. Starrs), the Supreme Court of the United States had referred to the "land system" of the Provisional government of Oregon. Mr. Justice Field, in delivering the opinion of the court, used the following language:
"It (the Donation Law) substantially gave to every settler, upon certain conditions, the land which he occupied, excepting only mineral and saline lands, and such parcels as might be reserved by the President for forts, arsenals and other public uses. The law, as well observes Mr. Justice Deady, in the able opinion from which we have already cited ( Lownsdale vs. City of Portland), 'was a system complete within itself, and admirably adapted to the conditions of the people and the country as it found them,' and was 'a practical recognition and confirmation of the land law of the Provisional government.'"
The language used by Mr. Justice
Deady, and referred to in such commendatory terms, was embodied at length
and constituted part of the opinion of the Supreme Court in Stark
vs.
Starrs, 6 Wallace, 415.
"It is well known," says Mr. Justice Deady of the United States District Court of Oregon, "that at the time of the organization of Oregon Territory, an anomalous state of things existed there. The country was extensively settled, and the people were living under an independent government established by themselves. They were a community in the full sense of the word, engaged in agriculture, trade, commerce and mechanical arts, had built towns, opened and improved farms, established highways, passed revenue laws and collected taxes, made war and concluded peace. As a necessity of their condition, and corner-stone of their government and social fabric, they had established a land law, regulating the possession and occupation of the soil among themselves. That all this was well known to Congress would be highly probable from its historic importance, and is certain to have been so from the language of the act itself. The leading feature of the land law of the Provisional government was that which provided that every male inhabitant of the country, over a certain age, should hold and possess 640 acres of land. The uses to which the land might be put to use was immaterial. In the disposition of the public land, this state of things called for peculiar legislation, different in toto from that required in an unsettled country."
In brief general terms, the Donation Law was intended to secure to each settler, upon his compliance with conditions imposed by that act, the land claim which he had taken under the land law of the Provisional government, and occupied at the time of the passage of the Donation Law.
Nor are we without direct congressional expression that the animus of that legislation was also recognition that Congress had stimulated immigration by promising land grants (1).
"Our claims to this country (Oregon) were endangered, the jealousy and patriotism of the country were aroused. In view of this state of things, the expedient of donating land in liberal quantities to all American citizens who should go there and settle was debated. The advocacy of the policy, though general, was no more so than the conviction universal, that these grants would be made by Congress. Had it not been for treaty stipulations which forbade such action, Congress would long previous to 1848 have made provisions for such donations. Such donations were based upon public sentiment and congressional action; and without such expectation they never would have emigrated to the country, which would therefore have remained unsettled by American citizens to this day. Among the benefits accruing to the government from the settlement of that territory by Americans was a speedy settlement of the question of title in dispute between the United States and Great Britain, enlarging the commerce of the United States, and laying the foundations of the new and mighty states upon the Pacific coast."
Congress had, about the time that emigration commenced from the western States to Oregon, committed itself to the policy of donating lands to actual settlers, in consideration of colonizing or defending the territory. In view of Indian difficulties in Florida, Congress passed a law which provided that any person being the head of a family, or a single man over eighteen years of age, able to bear arms, who had made or should, within one year from and after the passage of the act, make actual settlement, should be entitled to one quarter section." (2).
Hence it may be stated without fear of contradiction that the government was committed to the policy of granting lands to actual settlers, whose presence in the territory were invited for the purpose of recovering, reclaiming or holding occupancy of the territory.
(1) Report of Commissioner of House of Representatives, No. 271, Thirty-first Congress, first session.
(2) Act of Congress approved
August 4, 1842: "Act for the armed occupation and settlement of the unsettled
part of peninsula of East Florida."
In the passage of the Donation Law, Congress clearly recognized the fact that its own proceedings for a series of years had fully warranted the Oregon Provisional government in forming its land law, in the anticipation that the national government would sanction such legislation by grants to actual settlers. In such a view, the act of September 27, 1850, may be accepted as a redemption by Congress of that pledge , which seems to have been implied from the significant circumstance that each branch of Congress, separately, 'tis true, yet year after year, had encouraged settlement of the country by incorporating in each measure introduced and discussed, nay more, passed by one or the other House, though concurrent action or perfected legislation had been uniformly defeated because of the existing Joint-Occupancy Treaty of 1827. Those ideas would seem also to have actuated Congress in defining beneficiaries of the act, in fixing the area of land grants, and prescribing boundaries. Two classes were created; the quantity of land granted was made contingent upon the time of arrival in the country.
The first class embraced "every white settler or occupant of public lands, American half-breeds included, over the age of eighteen years and a citizen of the United States, or who had declared his intention to become such, or who should, on or after December 1, 1851, make such declaration, then residing in the territory, or who should arrive therein prior to December 1, 1850. To such, the act granted a half section, or 320 acres, if a single man; or, if married, an entire section, or 640 acres, one-half to the husband and the other half to the wife, in her own right. The second class included white male citizens above the age of twenty-one years, or persons above the age of twenty-one years who had made declaration to become citizens, settling in Oregon after December 1, 1850, and prior to December 1, 1853, and all white male American citizens not before provided for, who shall have become twenty-one years of age in the territory between December 1, 1850, and December 1, 1853, to December 1, 1855. To the second class was granted a quarter section, or 160 acres, if a single man; or, if married, a half section, or 320 acres, one-half to the husband, and the other half to the wife, in her own right.
The Donation Law, as originally passed, required four years' residence and cultivation, making all sales or contracts of alienation void till patent issued. The amendatory act rendered contracts of sale or other disposition valid after four years' residence. It also provided that, in lieu of four years' residence, the settler might, after two years' residence, commute by payment of one dollar and twenty-five cents per acre. The subsequent amendatory act, approved July 17, 1854, still further reduced the term of residence to one year, with the privilege to commute by purchase at one dollar and twenty-five cents per acre. The donation system expired by limitation, fixed in the last amendatory law, upon December 2, 1855. Number of donation certificates issued in Oregon, 7,317, area of land covered by certificates, 2,563,757; number of donation certificates issued in Washington Territory, 985; area of land covered by certificates, 290,215.
Despite the pledges of the government
to the settler, despite the hardships of pioneer life, - the hard task
to earn those lands too often by four years of solitary confinement at
hard labor, for such it was in those early days, - yet every excuse had
been sought, every technicality has been restored to, to defeat claims,
to set aside proof, to deny recognition of the settler's title. Numerous
patents for those so-called donations remained unissued to those who helped
to regain the country, who defended it from savage warfare before the government
commenced to perform its duty, who prepared it for the homes of American
men, women and children, who prepared the way for the establishment of
Pacific commonwealths.
John B. Preston of Illinois, who was appointed by President Taylor first Surveyor-General of the territory, reached Oregon City April 21, 1851, where he established his office and at once entered upon his official duties. Surveys of public lands were commenced in October; and on the 5th of February, 1852, the first township plats had been filed, at which date notice was given to settlers on surveyed townships that the Surveyor-General was prepared to receive from them notifications of their respective claims as provided by section six of the Donation law.
On the 29th of November, 1850, Lot Whitcomb commenced the publication of a Democratic newspaper at Milwaukee called the Western Star, of which John Orvis Waterman was editor. In the May following, Waterman and William D. Carter, printer, purchased the office and removed it to Portland, where the paper was published under the name of the Portland Times. On the 4th of December, 1850, Thomas J. Dryer issued the first number of the Oregonian at Portland. From its birth it has ever continued to be conducted with marked ability and thorough devotion to the interests of the whole Northwest. During the session of the legislature (winter of 1850), Asahel Bush had been elected public printer. In the month of March (1851), he commenced the publication at Oregon City of the Oregon Statesman. Its distinguished editor advocating with most earnest zeal the removal of the seat of government to Salem, the publication office of that journal was early afterwards transferred to that city. Partisanship of bitterest and most ultra character was the great feature of that time. The newspapers either caught the infection or fanned the flame. Dryer was the recognized Whig journalist of the territory. Bush was the acknowledged champion of the Democracy and so-called Democratic measures, and quite as severe as his Whig rival in denouncing those with whom he differed. Each successfully vied with the other in personal rancor, in bitterness of personal retort. For a period, "Oregon Journalism" became and continued to be the recognized synonym for utter disregard of editorial courtesy and civility of expression or demeanor to each other, or to a political opponent. Never, perhaps, to a greater degree, were differences as to political opinions or party fealty made occasion to mar and destroy social relations, to alienate the good feeling and peace of the community. But that abnormal condition of society, that perversion of the great mission of the press, has happily changed. Those scars have all been effaced. The impulsive and impetuous Dryer, so bitter to opponents, so generous to friends, has gone to his reward. Bush lives at a green old age, respected and esteemed as one of Oregon's most conservative and public-spirited citizens. The acerbities of partisanship strife have been allayed. The happy task alone remains to attest appreciation of the zeal, commend the industry and express admiration of that genuine ability exhibited by those brave pioneers in the politics and journalism of Oregon, at the dawn of the last half of the nineteenth century.
On the 2d of December, 1850, the second
session of the territorial Legislative Assembly convened at Oregon City.
W.W. Buck of Clackamas was elected President of the Council, and Dr. Ralph
Wilcox of Washington Speaker of the House of Representatives. George L.
Curry was chosen Chief Clerk of the council, and Asahel Bush Chief Clerk
of the House. Governor Gaines delivered his first annual message, mainly
devoted to recommendations as to the expenditure of congressional appropriations
for territorial buildings and purposes. Among the appropriations to which
reference was made was the sum of $5,000 in his hands for building a capitol,
to which sum should be added a late appropriation of $40,000.
During the fall, Lot Whitcomb had been engaged in constructing a steamboat to run up the Willamette and Columbia rivers. Soon after the legislature had convened, a public meeting was called (December 7th), in the hall of Representatives in Oregon City, consisting of legislators, public officials and citizens. It was resolved that the steamboat in process of building at Milwaukee should be lamed "Lot Whitcomb of Oregon"; and a stand of colors was presented to Mr. Whitcomb by a committee, consisting of Governor Gaines, Hon. Samuel Parker and Hector Campbell. On Christmas day, the steamer was launched, Governor Gaines christening her. In the salute, Captain Morse of the schooner Merchantman was killed by the explosion of a cannon. In January, she made her trial trip to Astoria, and thereafter ran as a regular passenger and freight packet, commanded by Captain John C. Ainsworth; her engineer was Jacob Kamm.
The county of Pacific (north of the Columbia river) and Lane and Umpqua counties in the southern part of the territory, were organized at this session. The judicial districts were remodeled as follows: First District, Clackamas, Marion, Linn and Lane; Second District, Washington, Yamhill, Benton, Polk and Umpqua; Third District, Clatsop, Lewis (including Pacific) and Clark. Most of the session was spent in acrimonious debate upon the removal of the seat of government, and as to the powers of the governor to act concurrently with the assembly in the application of certain funds appropriated by Congress for the erection of suitable public buildings for the territory at its seat of government.
In Provisional government times, by the act of June 27, 1844, Willamette Falls, or Oregon City, had been designated as the place for the Legislative Assembly to hold its sessions. Later, in 1845, a law was enacted by which that place had been designated as the seat of government. At that place the first session of the Oregon territorial legislature had met, which legislature, by section fifteen of the Organic Act, was empowered "at its first session, or as soon thereafter as practicable," to locate and establish the seat of government. That first session adjourned without fixing either time or place for the next session of the assembly. On April 6, 1850, Governor Lane called an extra session of the legislature, to meet at Oregon City May 6, 1850. At that extra session, a resolution was passed "that the Legislative Assembly will meet on the first Monday of December next." Under those circumstances the present session was held at Oregon City.
A bill was introduced, entitled, "An
act to provide for the selection of places for the location and erection
of the public buildings of the territory of Oregon," the consideration
of which occupied much of the session. The bill consisted of ten sections,
the first of which located the seat of government at Salem; the second
established the penitentiary at Portland; the third located the territorial
university at Marysville (Corvallis), and provided for the sale of university
lands to erect suitable buildings for such university. By other sections,
commissioners were appointed to regulate the erection of buildings. Their
duties were defined and their powers enumerated. It was the contention
on the part of the friends of Oregon City as the capital, that such act
was null and void because it was in express violation of the territorial
Organic Act. That section six of said act, among other things, provided:
"To avoid improper influences, which may result from intermixing in one
and the same act such things as have no proper relation to each other,
every law shall embrace but one object, and that shall be expressed in
the title." That this act embraced more than one object; that its objects
were not expressed in the title; and that it failed to conform with the
above expressed rule, and therefore was a nullity;
that as Oregon City had been recognized by the legislature as the capital, it must so remain until by proper legal enactment another place shall have been lawfully fixed as the seat of government.
The Location Bill was called the Omnibus Bill because of its many sections, its several purposes securing all necessary public buildings. The controversy in regard to it soon assumed partisan shape. The bill passed on the 1st of February, 1851. In the council, it received six votes to three; by the House it was passed by a vote of ten to eight. On the 3d of February, Governor Gaines sent a special message to the Assembly, in which he conceded the right of the Assembly to locate the seat of government, but claimed that after the location it was his province to act in conjunction with the Assembly in the expenditure of the appropriations. He declaimed against the act as violating section six of the Organic Act, and asserted it was therefore a nullity. Again he invoked the Assembly not to adjourn without carrying into effect the recommendations of his message as to the erection of the public buildings, for which appropriations had been made by Congress. To the Location Bill as passed he expressed his dissent, and refused to participate in its execution. The legislature, fretting under these suggestions, or, as they called it, "interference," passed a resolution that neither his annual nor special message should be printed with the journals.
Before adjournment, the legislature passed a joint resolution providing for the annual session of the Legislative Assembly to be held on the first Monday of December, at the seat of government.
On the 5th of February, 1851, at the request of Governor Gaines, United States Attorney Holbrook rendered an official opinion that the act was invalid because in direct violation of the last clause of the sixth section of the Organic Act, inasmuch as more than one object is embraced in the law, all of which objects are not expressed in the title (1). On the 6th of February, Governor Gaines inclosed copies of the Location Bill, his special message of February 3d, and the opinion of the United States Attorney, to the Attorney-General of the United States, requesting an official opinion as to the validity of the act; - whether the Legislative Assembly can lawfully assemble at Salem at its next session, and whether the bond authorized to be taken by said act would have any binding force (2). The matter having been referred to the Attorney-General by President Filmore, the Attorney-General, John J. Crittenden, replied, April 23, 1851 (3):
"The only Acts of Congress which I have found relating to the subject are, 'An Act to establish the Territorial Government of Oregon,' passed August 14, 1848, and 'An Act to make further appropriations for public buildings in Minnesota and Oregon,' passed June 11, 1850.
"By the first of these acts, the legislative power and authority are vested in the Legislative Assembly of the territory, consisting of a council and House of Representatives; and the concurrence or approval of the governor is not requisite to the validity of acts of the legislature. The power 'to locate and establish the seat of government for said territory,' is expressly given to the Assembly by the fifteenth section of that act.
"It may be a question how far this general and exclusive power of legislation has been qualified by the Act of Congress of June 11, 1850, in instances therein embraced. That act in its first session provides, 'that the sum of twenty thousand dollars each be, and the same is hereby, appropriated to be applied by the governors and Legislative Assemblies
(1) Executive
Document No. 96, House of Representatives, thirty-second Congress, first
session, page 5.
(2) Ibid., page 1. Executive
Document No. 94, id ., page 3.
(3) Ibid., page 6. Id.,
page 5.
of the territories of Minnesota and Oregon, at such place as they may select in said territories for the erection of penitentiaries;' and in the third section it further provides 'that the sum of twenty thousand dollars, etc., be, and the same is hereby appropriated, etc., to be applied by the governor and Legislative Assembly of the territory of Oregon to the erection of suitable public buildings at the seat of government of said territory.
"This last section does not conflict with the previous exclusive power of the Assembly to 'locate' the seat of government. But the seat of government once fixed by the Assembly, it does not give him, the governor, concurrent and equal authority with them in the application of money to the purpose designated. In reference to the use of this money, the legislative power of the Assembly is qualified; and they cannot dispose of it without the concurrence of the governor.
"In regard to the appropriation for the erection of a penitentiary in Oregon, the act is too explicit to leave any room for construction. That money is to be applied, 'by the governor and Legislative Assembly of Oregon, at such place as they may select for the erection of a penitentiary.' By the force of this language, the governor must have concurrent and equal power with the Assembly, not only in the application of money for the erection of necessary buildings, but in the selection of the place where they are to be erected.
"On the other topics presented in the message of Governor Gaines, and in the written opinion of the United States Attorney, it is unnecessary for me to say more than that I entirely concur in the views expressed by those gentlemen.
"The Act of Congress which established the territorial government of Oregon, and from which its Legislative Assembly derives its existence and power, expressly and imperatively declares that, 'to avoid improper influences which may result from intermixing, in one and the same act, such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title.'
"That the Act of the Legislative Assembly in question does 'embrace more than one object,' and that it is, therefore, in violation of the Act of Congress, is a proposition that cannot be made plainer by argument. The same Act of Congress declares what shall be the consequence of such violation of its provision, namely, that the territorial act 'shall be utterly null and void.'
"My opinion, therefore, of the act in question is, that it is null and void in all its parts, and consequently can give no legal validity to any thing done under color of its authority."
On the 9th of April, 1851, Samuel
R. Thurston, first delegate to Congress, while returning to Oregon on the
steamer California, died at sea between Panama and Acapulco, at
which latter place he was buried. Mr. Thurston was born in 1816 at Monmouth,
Maine; graduated at Bowdoin College, class of 1843; studied law at Brunswick,
and having been admitted to practice, married and migrated to Burlington,
Iowa, in 1845, where he edited the Burlington Gazette until 1847.
That year he crossed the plains to Oregon. In politics an ultra Democrat,
yet at the period he reached the territory, and at the first election,
party lines had not been strictly drawn. Citizens divided more upon sympathy
with, or avowed opposition to, the Hudson's Bay Company. The Methodist
Mission, or rather those who have been identified with it (for it and they
still retained their prestige), constituted the nucleus about which
had rallied the elements of hostility, actual or passive, to the Hudson's
Bay Company's influence in the territory. Of Methodist predilections, Thurston,
with his whole ardent nature, espoused the Anti-Hudson's Bay
Company party. To that course, not to partisan politics, nor to having been a Democrat, was he indebted for election as Oregon's first delegate to Congress. To him must be accorded decided ability, eloquence of a high order both as a stump speaker and debater, untiring industry and earnestness of purpose. All must commend his zeal to accomplish a result, while hesitating to approve the means resorted to. He was a politician who worked mainly for personal success and popular applause; nor did he scruple as to the means to gratify his ambitious desires. He was an industrious and efficient representative, and accomplished much useful legislation for his constituency. By authority of the legislature of his adopted territory, his remains were exhumed at Acapulco and brought to Salem, the seat of government, and there by the representatives of the people was caused to be erected by the territory of Oregon a marble monument to his memory. On one face are the words, "THURSTON, erected by the People of Oregon," with a fac-simile of Oregon's great seal. Another face records in full his name, his age, date of his death; and yet another side attests: "Here rests Oregon's first Delegate, a man of genius and learning, a lawyer and statesman, his Christian virtues equaled by his wide philanthropy. His public acts are his best eulogium." Let that laudatory tribute to eminent ability by grateful admirers be his requiem. Let the remembrance of intellectual greatness and successful labors so conspicuous as to warrant that high-wrought eulogy efface the recollections of any error in the short but brilliant career of a youthful, impulsive, perhaps too impatient, seeker for political fame.
On the 21st of April, Thomas Nelson of New York, who had been appointed Chief Justice of the Supreme Court of the territory in place of William P. Bryant, resigned, arrived at Oregon City. He was accompanied by Associate Justice Pratt, who had returned from San Francisco. For the first time since the organization of the territory, a full bench was present; the three judicial districts had assigned judges on duty within their respective districts.
In company with Chief Justice Nelson came the "Oregon party," as it was known and named by their fellow travelers on those notable voyages of the Empire City on the Atlantic side, and the California from Panama to San Francisco, including several gentlemen who became prominently identified with Oregon history and progress, and who filled the highest offices in its State government. Among them may be named Surveyor-General Preston, with his family, Stephen F. Chadwick, who so creditably discharged his duties as Secretary of State, and acquired distinction as governor, and L.T. Moody, one of the most practical of Oregon's governors. That party lost its most brilliant member by the death of Oregon's first delegate (1).
At the general election (June 2, 1851), General Joseph Lane, Democratic nominee for delegate to Congress, was elected, he receiving 2,093 votes to 548 for his competitor, William H. Wilson. Such a triumphant majority was in a great measure attributable to the personal popularity of General Lane. He was a favorite with all classes. He had justly endeared himself to the people by his efficient and patriotic administration as governor and superintendent of Indian affairs, and by his gallant and disinterested services against the savages in Southern Oregon. His election was also a tribute of grateful admiration to an old soldier and hero, who had done meritorious service in the wars of the republic. He was a born leader of men. He claimed not the eloquence of the schools. He possessed to a marvelous degree that great power, that eloquence of action,
(1) Manuscript
notes by Governor S.F. Chadwick, entitled "Oregon Party." They left New
York on the steamer Empire City March 13, 1851, via Isthmus
of Panama, from whence they came to San Francisco on the steamer California,
and arrived at Oregon City April 21, 1851.
that magnetism, which asserted personal sway whenever occasion required it. In the merited tribute paid to his memory by his friend, companion and copatriot, the late Senator Nesmith (the text but slightly altered to give it individual application), will be found most faithfully portrayed those qualities which marked his character and were the elements of his great popularity:
"He was the product of a frontier civilization. Nature had been more lavish to him in her bounties than had the schools. He had gained great distinction in the military service of the country; yet simplicity of character, honesty and directness of purpose, sympathy with the people, were his great characteristics. He was a brave, unselfish patriot, whose chief, nay, whose only, desire was the welfare of his fellow citizens."
The "Location Question" had permeated, saturated and poisoned the politics of the territory; it had been an issue in the election. The Whigs in the main acted in sympathy with the Wig Executive. Democrats as naturally opposed, and hence the location controversy to a great extent became a party issue; but here and there local interest made it a local rather than a political question. As the time for the meeting of the Legislative Assembly and the Supreme Court approached, the feeling, not to say excitement, intensified. The question "where was the seat of government?" in the very nature of things had to be met and answered. Judges of the Supreme Court and members of the legislature were alike compelled to choose before entering upon the performance of required public duties. Each for himself must go to the seat of government, either to Oregon City or to Salem. Thus personal attendance in itself at either place practically indicated the decision reached, or the individual construction of the law. According to law, the Supreme Court must hold its annual term at the seat of government. The same law was applicable to render legal the session of the Legislative Assembly. That body also, to make its acts effective, was required to have performed them at the seat of government, and to have assembled on the day fixed by law.
Nelson, chief Justice, and Strong, Associate Justice, constituting the quorum of the Supreme Court of the territory, assembled at Oregon City December 1, 1851, to hold its annual term. Thus and thereby they practically established that the Supreme Court, or at least a majority of its members, were of the opinion that such place ws the seat of government. So remarked Chief Justice Nelson to counsel, when the plea was interposed in the case of Amos M. Short, plaintiff in error, vs. Frederic Emalinger, defendant in error, objecting to the two Judges proceeding with the case at Oregon City, that "said cause can be heard, determined and acted upon only by a majority of the JUdges of the Supreme Court convened for the purpose of holding a term thereof at the seat of government, which said seat of government had been duly and legally established and now is at Salem." Argument on the plea was heard; the next day the plea was overruled, both Judges filing lengthy written opinions holding the Location Law invalid because of violating section six of the Organic Act. Pratt, Associate Justice, had opened court at Salem. He there waited for his brethren, maintaining that city to be the legally established seat of government. In a letter in reply to a request by the president of the territorial council, he dissented in toto from the reasoning and conclusion of the opinion by the majority of the court, - the decision of the court; for the law made a quorum the court, competent for all purposes.
On December 1st, the day fixed
by law for the convening of the legislature, all the members of the territorial
council (except Columbia Lancaster, of Lewis and Clark counties), and all
the representatives (except four, to whit: Messrs. Matlock, Wait, Kinney
and Brownfield), assembled at Salem. A quorum of both Houses being in attendance
the council organized by the election of Samuel Parker, President. The House of Representatives elected William M. King, Speaker. On the 9th of December, a joint committee was appointed to draft a memorial to Congress relative to the conduct of the Federal officials. That censorious animus which dictated the movement was but another outcropping of the spirit of the times. The people had become more tenacious as to the location of their own seat of government, because "imported officials," as they were called, whom they had no agency in selecting, were attempting to thwart the exercise of such privilege. On December 18th, the memorial passed with great unanimity. It was a popular measure. Meetings followed in several counties, denouncing Governor Gaines, Judges Nelson and Strong, and other Federal appointees, and their acts, and upholding the Salem legislature and Associate Justice Pratt. That memorial was an able document; it severely arraigned the Federal officials for neglect of duty, and charged them with malfeasance and misfeasance in office. It championed the validity of the law which had made the location of the public buildings. It defended the legality of the proceedings of the legislative body then assembled at Salem. It ably criticized the opinions of the Supreme Court, pronounced by the two judges then in session at Oregon City as the Supreme Court. It claimed that faults committed by officials not identified with the territory and its people were harder to be borne by that people; that there were bona-fide citizens of the territory able to discharge the duties of all the offices; that there are all-sufficient reasons why the citizens of the territory should elect their own officers. Such were the premises for the prayer for "Home Rule," for an amendment to the Organic Act allowing the people to elect their own governor, secretary and judges:
"Your memorialists are well convinced that the system of appointments by the President, of men to execute and construe our laws who are strangers to our wants, our customs, our sympathies and our feelings, is intrinsically wrong, and that it is especially so when applied to a territory situated, as this is, five thousand miles from the Federal capital.
"The government of the United States is based upon the proposition that man is capable of self-government. If, when the people of this territory, numbering less than half the present population, were capable of originating and maintaining out of the crude and conflicting elements then existing a government for themselves, there is no good reason why they are not capable to select from among themselves men of their own choice to execute and construe their laws. In our present situation, we sustain the position of absolute dependents, unfortunately not directly upon the will of a beneficent Congress, but upon the caprice of adventurers and strangers who came here by the accident of party ascendancy, and treat their official position, when here, as a reward for political services already rendered to their party at home, rather than as a means of advancing our prosperity and interests. Although the territories are the property of the United States, we conceive their inhabitants are citizens of the United States, and should enjoy and exercise, so far as Congress can extend it to them, the freedom of free men."
That memorial having been passed,
the assembly settled down to law-making. Marion, Linn and Lane counties
were detached from the judicial district of Chief Justice Nelson, and added
to the district presided over by Judge Pratt. One county (Clackamas) alone
constituted the district of the Chief Justice. This attempted invidious
circumvention of Judge Nelson, to defeat his exercise of judicial functions,
found its provocation in the alleged fact that the Judge had avowed a predetermination
to ignore all laws passed at Salem at that session. Whether he so unwisely
and injudiciously talked, or even
entertained the thought to prejudge matters liable to come before him for judicial construction, need not be inquired into. Suffice it to say that, consistent with the ruling as to the legal seat of government made by the quorum of the Supreme Court of Oregon, who held the term at Oregon City (December, 1851), it would have been his duty as a nisi prius judge, to follow the decision of that higher court; doing so, he must have so held. The knowledge that such decision, as to the laws enacted at Salem, must logically follow, if any question as to such laws should arise, probably gave origin to the accusation of judicial bulldozing, or injudicious, nonjudicial prattle; but, whether truly or falsely made, it afforded no justification for thus indirectly and humiliatingly defeating the performance of judicial duty by one lawfully clothed with the ermine. Again Judge Nelson, a gentleman of high personal character and admitted learning, was entitled to respect from a co-ordinate branch of the government; nor was the assembly a competent tribunal to punish him, surely not without trial; nor was such a scheme a proper punishment for any supposed official delinquency. It was quite early enough to have consigned a man to Coventry, to have declared a judge incompetent or unworthy, after he had made a decision which exhibited abuse of his exalted trust, when selfishly or mercenarily he had wrongfully decided, governed in such wrongful decision by personal prejudice rather than by honest conviction.
At that session, several new counties were established. The northern part of Lewis was set off. When reported, the act contained the name "Simmons," in honor of the pioneer American settler in the Puget sound basin; that name gave place to Thurston, a legislative tribute to the memory of the first delegate. Douglas and Jackson counties were formed of territory cut off from Umpqua; but for judicial purposes they continued attached to the old country.
Columbia Lancaster, who had been elected to that legislature as councilman for all the territory north of the Columbia river (all of what shortly afterwards became Washington Territory), repaired to Oregon City; and, upon the day fixed by law for the meeting of the Legislative Assembly, he organized a council of one. He was unanimously elected its temporary President. He caused all offices of that branch to be filled. Day after day, until December 17th, that council of one met and adjourned. Solitary and alone, that faithful legislative Wilkins Macawber waited for something to turn up,- awaited the coming of his brother members. But they came not to his council; neither did he go to theirs. On the 17th of December, he adjourned. The clerk of that council kept a faultless faithful record. The entries were brief, but they told how promptly and regularly he met and as promptly he adjourned (1). The Oregon City House opened on the first of December; present, Messrs. W.T. Matlock and A.E. Waite. Mr. Matlock was declared Speaker pro tem. Those two were subsequently reinforced by the attendance of Mr. Kinney of Yamhill and General Daniel F. Brownfield of Lewis. On the ninth, Mr. Waite secured leave of absence. At the afternoon session, two o'clock, Wednesday, December 17, 1851, the record reads:
"The House met pursuant to adjournment. The House was called to order by the Speaker; present Messrs. Matlock, Kinney and Brownfield. There not being a quorum present, on motion of Mr. Brownfield the House adjourned sine die."
The "late two presiding officers pro tem," as they sign themselves, drafted, and in their official character, signed, a memorial to Congress (2). Said they: "There is no spot
(1) House
Miscellaneous, Thirty-second Congress, first session, No. 10.
(2) House Miscellaneous, Thirty-second
Congress, first session, No. 14.
within the government domain presenting so many barriers and obstructions in the way of approach and intercommunication between its different parts as Oregon. The surf of the pacific is lashed into one unbroken line against the base of the Coast Range of mountains, while they shut in the eden of Oregon, and present one dark outline of unbroken and impassable barriers on the west, creating a solitude which is felt, but which cannot be expressed. It is true 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, thereby opening a communication into the interior of about two hundred miles; and that a few other places have been found south, along the coast, which in time will be reached at great labor and expense; yet the present wants and necessities of the inhabitants of the whole territory require aid, protection and security."
This eloquent preamble was followed by prayers: That territorial council representation be increased from nine to fifteen; that necessary fortifications and defenses be erected at the mouth of the Columbia river; that a military road be constructed from Puget Sound to the Columbia river, thence up the Willamette river to Umpqua valley; that the navigation of the Willamette river be improved; that bounty land be granted to volunteers who had served in the Cayuse war, that pensions be granted to wounded and disabled survivors of that war, and to the widows and heirs of those who fell in that war; that a competent military force be stationed within the territory, and at proper points along the overland routes, to protect immigrants; that an appropriation of $10,000 be made by Congress to purchase a library to be placed in the University of Oregon.
As illustrative of the personal character of the politics of that period, Columbia Lancaster for years was alluded to as "old basaltic formation," in derision of the "One-horse Council," and the act of those two very respectable gentlemen in forwarding to Congress the "Memorial of Columbia Lancaster and W.T. Matlock, presiding officers of the Council and House of Representatives of the Territory of Oregon."
Such was the anomalous condition of affairs. A quorum of the law-construing power at Oregon City judicially declared that such place was the "seat of government," while a meager minority of elected legislators assembled there and respected judicial decision. A quorum of the law-making power was at the same time assembled at Salem. A dissenting minority of the Supreme Court was there also giving sanction by judicial presence and opinion, that by the operation of law Salem had been declared and was the seat of government, the lawful place where such legislature should perform its functions.
On January 1, 1852, Governor Gaines addressed a lengthy communication to the President of the United States. He complained that Associate Justice Pratt had published articles in the press of a partisan character, and bearing upon the seat-of-government difficulty; that the official was guilty of using his influence and making personal efforts to induce members of the legislature to attend the session at Salem. The governor asked that an investigation should be made of Judge Pratt's official conduct (1).
On March 22, 1852, Attorney-General Crittenden, to whom Governor Gaines' letter to the President (January 1st), with its inclosures, had been referred, made a report (2). Having ably reviewed the whole subject, and reiterated his formerly expressed opinion that the law locating territorial public buildings was invalid, he thus recommended congressional interposition to terminate the controversy:
(1) Executive
Documents, Thirty-second Congress, first session, House of Representatives
No. 94, page 30.
(2) Ibid., page 31.
"Thus it appears that the act of February 1, 1850, for the removal of the seat of government from Oregon City to Salem, is regarded by the governor as repugnant to the Organic Law, and void; that it has been solemnly so decided by the Supreme Court of the territory, and that Oregon City is the lawful seat of government; that the court is accordingly holding its session there, and proceeding in the discharge of its judicial duties, while a large majority of the members elected to the present Legislative Assembly, adhering to the said act of the preceding Legislative Assembly, has assembled at Salem, insists that this is the seat of government, and has there organized as a legislative body, and has assumed and exercised legislative powers. From such a conflict of public authorities, the most unhappy consequences can alone result. Controversy and confusion and high excitement are represented as having already spread through the territory; and these evils must increase in the course of time, if some remedy be not applied. The members elected to the Legislative Assembly, who have assembled and organized at Salem, refuse all respect and conformity to the decision of the Supreme Court of the territory, and that court having decided that the meeting of the assembly at Salem was illegal, will, as a plain consequence, regard and hold all their acts as nullities. The source of all these troubles is the act so often alluded to, for the removal of the seat of government and other purposes.
"Having, as before stated, given my opinion as to the legal validity of that act in my letter to you of the 23d of April, 1851, I have now only to refer you to that letter. There is no other question of law involved in the case as now presented; and therefore I ought, perhaps, to conclude here. But you will excuse me for suggesting, that I see no proper remedy for the state of things existing in Oregon, but that which must be found in the wisdom and power of Congress. By its supreme authority, Congress can put an end to the disputed question about the seat of government, and can dispose of all the other minor or incidental questions which have sprung up and contributed to the disorder and confusion that now prevail in Oregon. It would seem to me, therefore, to be proper for the President to recommend such a course to Congress, and to communicate to them all the information in his possession relating to the subject."
President Fillmore adopted the wise and judicious suggestions of his able and conservative Attorney-General. On May 3, 1852, he sent a special message to Congress (1), accompanying it with copies of the act locating the public buildings, the messages of Governor Gaines, the opinion of Attorney-General Crittenden on the validity of the Location Act, the opinions of Judges Nelson and Strong on the Location Act, the letter of Judge Pratt, which contained his dissent from those opinions, Governor Gaines' letter to the President (January 1, 1852), and the report of Attorney-General Crittenden upon said letter. The message concluded:
"If it should be the sense of Congress that the seat of government had not already been established by the local authorities, pursuant to the law of the United States for the organization of that territory, or, as so established, should be deemed objectionable, in order to appease the strife upon the subject which seems to have arisen in that territory, I recommend that the seat of government be either permanently or temporarily ordained by act of Congress; and that that body should in same manner express its approval or disapproval of such laws as may have been enacted in the territory at the place alleged to be its seat of government, and which may be so enacted, until intelligence of the decision of Congress shall reach there."
(1) Executive Documents Thirty-second
Congress, first session, House of Representatives, No. 94, page 1.
Congress immediately, by joint resolution, declared Salem to be the seat of government of Oregon Territory, and approved the laws which ahd been passed at Salem during the session of 1851-52. The President signed that measure May 4, 1852. On being advised of the action of Congress in declaring Salem the capitol, Governor Gaines issued a proclamation calling an extra session of the Legislative Assembly (the members of which had been elected at the annual election in June, 1852), to be holden at Salem on the 26th day of July. At such extra session, Matthew P. Deady was elected President of the Council, and Benjamin F. Harding, Speaker of the House of Representatives. The governor's message informed the legislature of the act of Congress in declaring Salem to be the territorial seat of government, but expressed doubts as to the sufficiency or definiteness of the location. He suggested that sites for public buildings should be selected, commissioners appointed, and provisions made for letting contracts for the necessary buildings. The message also recommended rearranging judicial districts, and the appointment of a code commission. The legislature, without any attempt at legislation, on the third day after convening, adjourned sine die.
Through the intervention of Congress, the location embroglio was at an end. Its force as a party shibboleth had been spent; but the spirit of offensive partisanship engendered during its continuance had arrayed the respective political parties bitterly against each other.
Nor had the "Location" agitation been the exclusive firebrand in territorial politics. When it had subsided, it gave place to renewed and more intense personal rancor against the judges, Federal officials and those who sympathized with them or were disposed to palliate or defend their official conduct. "Under what 'Laws of Iowa' the people lived?" was a question which proved even a more disturbing element of social and community peace, more vexatious and far-reaching because that interested all classes. Doubt or peace, more vexatious and far-reaching, because that interested all classes. Doubt or discussion whether the people were living under any system of law, or whether the law that they had learned to respect was law, or had ever been legally enacted, was a contention which tended to render the community chaotic, not to say anarchical.
Matthew P. Deady, the erudite
judge, the industrious scholar (than whom none has labored more zealously
and conscientiously to preserve the archives, traditions and facts as to
the great Northwest; who is admiringly appreciated by a grateful people
for such invaluable labor; who is to an equal degree recognized as authority
upon the history of the region, and especially the history of its law,
as he is accepted as the expounder of that law; who is a most truthful
and reliable living oracle from whom either or both may be ascertained
and determined), has in his usual felicitous and comprehensive manner briefly
and tersely illustrated that controversy and its causes, a controversy
which briefly and tersely illustrated that controversy and its causes,
a controversy which continues through all of Governor Gaines' administration,
as one of the foremost elements of that prolonged, proscriptive, personal
and political strife. That account is of unusual interest. It points out
the fountains of the law under which the territory lived. It explains a
feature of legislation of a most novel and eccentric character, teaches
the meaning of the "Steamboat Code," of what that consisted, and how originated
that singular name. We learn, also, about the law as contained in the "big"
and "little blue books." An event took place in metropolitan Portland in
the summer of 1885, when that city right royally entertained at a banquet
the visiting Iowa journalists. The feature of that banquet was the speech
made by the venerable judge in proposing the toast, "The State of Iowa."
That incident made the occasion for his shortly subsequent contribution
to popular knowledge of the land which is our home, a succinct but most
valuable historic notice of "Early Oregon Laws" of the "big" and "little blue books." To have hesitated to eliminate any text, and substitute that oracular statement, would be culpable in any author who desired that his readers should have the most light, the facts best stated. Thus wrote Judge Deady (1):
"They (the Legislative Committee of the Oregon Provisional government, at its session at Willamette Falls, May and June, 1843) also provided that 'the laws of Iowa territory shall be the laws of this territory in civil, militia and criminal cases, when not otherwise provided for; and when no statue of Iowa territory applies, the principles of common law and equity shall govern.'
"The public meeting held at Champoeg, July 5, 1843, to consider the report of this committee, adopted the same, and added thereunto a resolution called 'Article XIX,' declaring that thirty-seven specified acts of general nature, contained in the 'Statue Laws of the Territory of Iowa,' enacted at Burlington in 1838-9, and 'published by authority' in 1839, should be the laws of Oregon.
"At a session of the Legislative Committee, held at Willamette Falls, June 18, 1844, consisting of Peter H. Burnett, David Hill, M.M. McCarver, M. Gilmore, A.L. Lovejoy, Daniel Waldo, Thomas D. Kiezer and Robert Newell, the constitution of the government was somewhat revised by an at passed June 27th, which vested the executive power in a single person, and the legislative power in the House of Representatives, to meet annually at Willamette Falls.
"Article XIX, relating to particular Iowa statutes, was repealed, and the following enacted on that subject:
"Article III. Laws. Section I. All the statue laws of Iowa Territory passed at the first session of the Legislative Assembly of said territory, and not of a local character, and not incompatible with the condition and circumstances of this country, shall be the law of this government, unless otherwise modified; and the common law of England, and principles of equity, not modified by the statutes of Iowa or of this government, and not incompatible with its principles, shall constitute a part of the law of this land.'
"And so the matter stood until the first session of the legislature after the organization of the territory by the United States, 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 revised 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 United States District Attorney pronounced the act making the selections from the Iowa statutes void, because it embraced more than one object, contrary to section six of the Organic Act of August 14, 1848; and, by way of making the imputation of multifariousness stick, he named it the 'Steamboat Code.'
"then the question arose and vexed the country, whether the Iowa laws of 1839 or those of 1843 were the laws of Oregon. Neither of them were published, except in the original Iowa volumes of 1839 and 1843, copies of which were scattered about the country. They were both bound in blue boards; and, as the earlier one was the smaller of the two, and the contents were very near the same, they soon came to be known as the 'big' and 'little blue books.'
(1) Daily Oregonian, June
26, 1885.
"From 1850 to 1853 the politics and 'personalities' of the country turned largely on this controversy. The judges were divided on it, editors wrangled about it, orators grew eloquent over it, until the condition between the Big-bookers and Little-bookers grew almost as fierce as that between the Big-endians and Little-endians of Lilliput, over the momentous question, - at which end should an egg be broken.
"In 1853 the writer, with his Iowa associates on the Supreme Bench, George H. Williams and Cyrus Olney, settled the controversy in favor of the "big book' and the law of Iowa, as contained therein, continued to be the law of Oregon, until May, 1854, when it was largely superseded by the code of that year.
"In conclusion, let me say that when asked how the common law of England came to be the law of this country, I have answered that it was brought here by the pioneers across the plains in their ox wagons, just as the colonists on the Atlantic slope brought it with them from the mother country across the ocean two hundred years ago; and I think this brief story of the origin of our laws justifies the answer. The English common law and language is the birthright and heritage of the English-speaking race, and follows them wherever they go, and under whatever flag."
The Democracy were greatly in the ascendant. The Federal officials, being appointees of a Whig national administration, continued to be subjects of personal denunciation. The Whig journals and leaders retorted upon prominent leaders of their political foe with equal malevolence. The Presidential election had resulted in the elevation to that exalted office of Franklin Pierce, the Democratic candidate. In the territory and nation, the office of Franklin Pierce, the Democratic candidate. In the territory and nation, the Democrats had achieved triumphant success. The Oregon Legislature which convened at Salem December, 1852, was overwhelmingly Democratic. Before it had assembled, the office of Judge Pratt had expired. C.F. Train had received the appointment to succeed him, but had not arrived, nor did he ever come to the territory. The district over which Judge Pratt presided was much too large for one judge. That fact made it necessary for the Legislative Assembly to rearrange the judicial districts. The new first district was composed of the southern counties, - Umpqua, Douglas and Jackson; and to it, by the bill as passed, Chief Justice Nelson was assigned. The second included the counties of Clackamas, Marion, Yamhill, Polk, Belton and Linn; assigned thereto was Associate Justice C.F. Train. The third district embraced all the territory north of the Columbia river, and the counties of Washington and Clatsop, to which Associate Justice Strong was assigned. A provision was inserted in the act authorizing the judges among themselves to make a different assignment, which should take effect upon notice being filed with the Secretary of the Territory. Under that arrangement, Chief Justice Nelson became presiding Judge of the second judicial district.
The progress of settlement in
the Puget Sound region, and, in fact, generally north of the Columbia river
west of the Cascade Mountains, rendered necessary the formation of four
new counties, set off from the north end of Thurston, and respectfully
denominated Pierce, King, Jefferson and Island counties. Acts were passed
also locating their county seats and appointing the necessary county officers.
The several measures providing for the location of the territorial public
buildings were amended. A board of building commissioners was constituted.
The governor was made ex-officio treasurer of the several building
appropriations, with power to disburse only upon the order of the respective
boards. A number of important memorials to Congress, for appropriations
for the aid of military roads, improvements of rivers and building of lighthouses,
were passed. Notable among them were: For a military road from Scottsburg
to Rogue river; for a military road from
Fort Steilacoom across the Cascade Mountains to Fort Walla Walla; for an appropriation for the survey of the boundary line between California and Oregon; for the improvement of the Willamette river; for lighthouse and buoys at the mouth of the Umpqua river; and for a custom-house at Umpqua. The most important memorial, perhaps, was a prayer for the division of the territory, the setting off of the territory north of the Columbia river, to be organized as a new territorial government, to be named Columbia.
General Lane, the delegate, was
eminently successful in promptly securing the passage by Congress of a
number of measures responsive to the memorials of the Legislative Assembly.
Among the congressional appropriations made was the sum of $75,000 for
the expenses of the Cayuse war. The President was authorized to designate
ports of delivery in Umpqua and Puget Sound collection districts. An appropriation
of $20,000 was secured for a military road across the Cascade Mountains
from Fort Steilacoom to Fort Walla Walla, and a like sum for a military
road from Umpqua valley to the Rogue river. The act to establish the territorial
government of Washington, passed in the latter days of the second session
of the Thirty-second Congress, was approved March 2, 1853. It provided
that all that portion of Oregon Territory lying north of the Columbia river,
from its mouth to its intersection by the forty-sixth degree of north latitude,
and said parallel continued to the summit of the Rocky Mountains, be organized
into and constitute the territory of Washington.