Find
Search:
Text Size: A+ A- A
|
|
|
Text Only Site
|
Accessibility
State of Oregon Law Library
Oregon Judicial Department History
●
About Us
●
Contact Us
●
Catalog (outside link)
History Pre-Statehood
History Post-Statehood
History Pre-Statehood
●
New Titles Received
OREGON'S COURTS UNDER THE PROVISIONAL GOVERNMENT
●
Reference Question?
By Joe K. Stephens
Law Librarian
●
OR Guide to Law Online
(outside link)
●
OR Revised Statutes
●
OR Bills and Laws
●
OR Court Rules
●
OR Legislative Search
●
US Guide To Law Online
(outside link)
●
Home
One of the oddities of Oregon history is that there was a court, or at least a judge, before there was a government.
It came about by a peculiar set of circumstances in the early days of the American presence in what was called “the
Oregon Country.”
At the beginning of the nineteenth century, the Oregon Country was a vast but vaguely defined area stretching along
the Pacific coast from somewhere south of the Russian presence in Alaska to somewhere north of the Spanish
settlements in California, and bounded by the crest of the Stony Mountains in the east. It thus included all the
present states of Oregon, Washington, and Idaho, a good part of California, Wyoming, and Montana, and most of
what is now British Columbia. The area was claimed by Russia, Spain, Great Britain and the United States, but Russia
and Spain dropped out of the competition by 1818 when the United States and Great Britain signed a Joint
Occupation Agreement. There was still no clear decision on the borders of the Oregon Country but by the terms of
this agreement it was to remain “free and open” to exploration, trade and settlement by both nations for a period of
ten years. The agreement was renewed for an indefinite period in 1827. The initial interest of both countries was in
trapping and trading, but with the collapse of the fur trade in the 1830’s some former French-Canadian trappers
employed by the Hudson’s Bay Company and former American Mountain Men from the Rockies and California, and
missionaries who came to convert the Indians, began to settle and farm the Willamette Valley.
Among the Mountain Men was Ewing Young. Young pioneered the southern route over the Rockies, and he was
among the first trappers to reach the Pacific coast. He made his way to the Oregon Country, and settled on the west
bank of the Willamette in 1834. He quickly became an influential leader among the settlers and he also became
relatively wealthy. Unfortunately, Young died in February of 1841, and his estate was a problem for the small
community because there were no known heirs to claim it and no will. Young’s activities involved many of the
settlers as debtors or creditors and an orderly settlement of his affairs was critical to avoid conflicts and dissension in
the community. Following Young’s funeral, a meeting of the settlers was held. Dr. Ira L. Babcock was chosen to act
as “Supreme Judge with probate powers” and instructed to act “according to the laws of the State of New
York.” David Leslie was appointed by Dr. Babcock to administer Young’s estate, and the document implementing
this appointment is probably the first official document ever issued by an Oregon judge. Young’s assets were duly
auctioned off, and the proceeds went to build the first jail in the territory, at Oregon City.
Young’s death brought home to the small community the need for the institutions of government. Besides dealing
with Young’s estate, the settlers appointed a committee of seven to draft a code of laws for the American settlements
south of the Columbia River. This was a response to the precarious legal situation of the community. British subjects
in the Oregon territory were governed by the Laws of Upper Canada, as administered by the Hudson Bay Company in
Fort Vancouver, and its chief factor, John McLoughlin. McLoughlin had no real legal authority over the Americans, but
he sought to maintain order and settle disputes among them. The Americans chafed at this de facto subjugation to
British Law and as early as 1838 petitioned Congress for the protection of life and property afforded by U.S. law.
Congress did not act, however, and the settlers were left to their own devices. The trickle—soon to be a flood-- of
new settlers into the Oregon country made it imperative that there be a secure mechanism for establishing title to the
acreage already settled, and for new settlers to establish their claims. A further meeting was planned for June 1,
1841 to consider the work of the committee, but this meeting did not take place after it was learned that the
committee had not produced a code. Another meeting was scheduled for October 1841, but in the meantime,
discussions were held with John McLoughlin, and with Charles Wilkes, commissioned by the federal government to
visit Oregon and report on conditions there. McLoughlin discouraged the formation of a government since it was
certain to diminish his authority, and Wilkes thought the country was “too young.” Thus ended this first attempt to
form a government in Oregon.
The problems consequent upon the lack of any organized government did not end, however, and discussion of the
issues continued among the settlers. In response to attacks on livestock by wolves and other predators, meetings
were held, ostensibly to devise means to protect the herds. These meeting were later known as the Wolf
|
Meetings. At the first of these meetings, in February of 1843, Dr. Babcock presiding, a committee was appointed to
report back to the community at a second meeting to be held in March. At this meeting, the committee set forth
several resolutions to provide for the collection of money to pay bounties for the destruction of wolves, lynx, panthers
and bears. As the meeting was drawing to a close, the subject changed from bounties to a plea for the organization
of civil government. The meeting ended with the appointment of a committee to consider the propriety of forming a
government “for the civil and military protection of this colony.” This committee, including Dr. Babcock, called for a
public meeting to be held May 2, 1843, to present its report. The report was initially rejected, but then taken up and
acted on article by article after dissenting French-Canadians withdrew. A legislative committee was appointed to
draft a code of laws, and a public meeting was scheduled for July 5, 1843. This committee duly produced its report,
and its articles were voted on and adopted at that July 5 meeting.
The resulting document is usually known as the 1843 Organic Law. It provided for an executive committee of three,
a legislative committee of nine, a judiciary, a military, and it included provisions regarding land claims. It divided the
territory into four counties, claiming jurisdiction within the entire territory delimited by the Treaty of Joint Occupation,
“…until such time as the United States of America extend their jurisdiction over us,” ignoring entirely the claims of
Great Britain under that agreement. There were about 140 Americans in Oregon at this time. They were certainly
outnumbered by French-Canadians and the employees of the Hudson’s Bay Company, but the British did not see the
Oregon Country as an area to be colonized, and they believed that the “natural barriers” to colonization from the
United States were “so numerous and so formidable” that overland emigration from the U.S. was highly unlikely.
This was a serious miscalculation. In the fall of 1843, only a few months after the adoption of the Organic Law,
nearly 900 Americans joined the 140 or so settlers in the Willamette Valley, a migration that virtually ensured a
resolution of the Oregon Question favorable to the United States. This result was formalized by the “Treaty with
Great Britain, in regard to Limits Westward of the Rocky Mountains,” July 17, 1846, acknowledging the sovereignty of
the United States over the Oregon Country.
The 1843 Organic Law was comprised of a preamble, the first four articles of the Northwest Ordinance establishing
the Northwest Territories (1787) (which was something like a Bill of Rights) and an additional nineteen articles
providing for the election of officials annually in May of each year and specifying their powers and duties. Article 7 of
this second section provided that “the judicial power shall be vested in a supreme court consisting of the supreme
judge & two justices of the peace, probate court, and in justices of the peace.” The supreme court was given both
appellate and original jurisdiction; the jurisdiction of the probate court and justices of the peace was to be fixed by
law, except that justices of the peace were to have no jurisdiction in controversies regarding title or boundaries to
land, or in matters in which the sum claimed was more than $50. Article 16 provided that the supreme court should
hold two sessions annually, the first at Champoeg on the third Tuesday of September, 1843; the second at Tuality
plains on the third Tuesday of April, 1844. At these sessions, the supreme judge was to preside, assisted by two
justices. However, no justice of the peace was permitted to assist in cases on appeal from his judgment. The
Supreme Court was given original jurisdiction in cases of treason, felony, or breach of the peace and in civil cases
where the sum claimed was in excess of $50.
Article 12 of the Organic Law adopted the 1838-39 statutes of Iowa Territory in civil and criminal cases and “where no
provision of said statutes applies the principles of common law and equity shall govern.” Apparently the Iowa statutes
were adopted because a copy was available to the Legislative Committee, sold to them by James O’Neil, along with
Jefferson’s Manual and A Guide to Judges. Some Iowa statutes were adopted explicitly in Articles 13, 14, and 15, and
a list of thirty-seven of the seventy-five statutes of this Iowa Code are adopted in a resolution following Article 19.
Does Article 12 adopt all the Iowa statutes? If so, why are some included explicitly in the subsequent articles, and
why are only thirty-seven listed in the resolution? The confusion created by this apparently inconsistent document
persisted into the Territorial period when it became important to determine what laws had actually been adopted by
the provisional government.
The Iowa statutes formed a very complete code for the period, and its provisions regarding the courts and court
procedure were much more detailed than the sketch of a court system found in the Organic Law, so it is unclear
exactly how they were to be applied in Oregon. Some provisions were written into the Organic Law. Article 13
required that “the supreme court shall perform the duties of the county commissioners…as prescribed in said laws of
Iowa.” But there was only one copy of the Iowa statutes in the territory. There was no newspaper. Laws were not
published. The only available copies were handwritten copies provided to elected officers. This could only exacerbate
the later confusion about just what the law was.
The 1843 Organic Law adopted in July 1843 provided that officials elected at the May 2 meeting would hold office
until May 1844. Albert E. Wilson was elected Supreme Judge with probate powers, succeeding Dr. Babcock in that
office. But Wilson declined to serve in that position, and there is no record of a scheduled September, 1843 session
of the court. However, in January, 1844, the Supreme Court Record (a handwritten notebook in the collection of the
State of Oregon Law Library) notes that “Ahi Smith obtained a writ of replevin for a yoke of oxen detained by Nineveh
Ford.” This matter was the first and apparently the only case to come before the new Supreme Court at its second
scheduled session in April, 1844. It was tried before Osborne Russell, “assisted by R. More Justice of the Peace.”
Russell, a member of the three-person Executive Committee, was appointed to act as Supreme Judge by that body
until the office could be filled. Presumably, a yoke of oxen exceeded $50 in value, and hence fell under the original
jurisdiction of the Supreme Court
In May, 1844 the ubiquitous Dr. Babcock was again elected Supreme Judge with probate powers, but the flood of new
immigrants who had arrived in the fall of 1843 elected several of their own to the Legislative Committee, and at the
June session of this committee, they sought to remedy the confusion as to which Iowa laws had been adopted by
enacting a new statute adopting “All the statute laws of Iowa territory passed at the first session of said Territory…not
of a local character…not incompatible with the conditions and circumstances of this country,…and the common law of
England.”
The new legislators also replaced the three-person Executive Committee with a one-person executive, to be “styled
the ‘Executive of Oregon’” and to be elected for a two-year term. And the legislature made major changes in the
judiciary, since the increased population of the Willamette Valley required more sessions of court in more places.
They provided for the annual election of a judge “and as many justices of the peace as shall from time to time be
appointed or elected according to law.” Sessions of the court were to be held in each county twice yearly. The court
was now called the Circuit Court, since it consisted of the elected judge who rode the circuit and a local justice of the
peace for each local session. The place for holding sessions of the court was fixed by the judge “from time to time,”
with one month’s notice. The Circuit Court now had original jurisdiction in all criminal cases, “and in all cases in law
and equity, when the amount sued for is not under one hundred and fifty dollars, and also in all probate and county
business, and appellate jurisdiction from justices of the peace.” The 1844 reorganization also provided for a grand
jury to be empanelled at each term, to be charged by the court, and for the court to appoint “any person” to
prosecute in criminal cases. If no person could be found to act as prosecutor, “the court shall examine the witnesses,
and shall give the law in charge to the jury.” Later in the year the Legislative Committee authorized the appointment
of a Circuit Attorney to serve until the next election.
The actions of the Legislative Committee in revising these provisions of the 1843 Organic Law led to a debate as
whether the Organic Law was a constitution. No distinction was drawn in the document between constitutions and
statutes—it was, according to one member of the Committee, “all constitution or all statute. All were adopted at the
same public meeting and were recommended by the same committee.” The document was called “the organic law”
which is consistent with the idea of a legal framework document but no procedure for amendment was provided and
therefore to change it would be revolutionary. On the other hand, unless it could be considered statutory, and
therefore something that could be changed, there was nothing for the Legislative Committee to do. The Executive
Committee agreed with this reasoning, but expressed concern regarding “the expectation of receiving some
information from the United States, relative to the adjustment of the claims of that government, and of Great Britain,
upon this country.” The Executive suggested that since it had been twenty six years since the 1818 Joint Occupation
Agreement and the status of the Oregon Country was still unsettled, it would be a good idea to frame a constitution
for Oregon “which may serve as a more thorough guide to her officers, and a more firm basis for her laws.”
Accordingly, the Legislative Committee proposed a constitutional convention and the question was submitted to the
voters at the general election of June 3, 1845. The voters rejected this proposal, but the newly elected legislature
prepared an amended Organic Law, which was submitted to the voters and approved July 26, 1845.
The 1845 Organic Law was structured in much the same way as the 1843 Law. There was a Preamble, still looking to
the time when “the United States of America shall extend their jurisdiction over us;” Article I (rather than Section 1)
incorporating a kind of bill of rights taken from the Northwest Ordinance, now with additional sections from the Bill of
Rights of the American constitution; Article II setting forth the powers and duties of elected officials in seven
sections; and Article III, incorporating provisions regarding land claims into the Organic Law that had been statutory,
and providing for amendments to the Organic Law. The Legislative power was now vested in a House of
Representatives of not less than thirteen nor more than sixty-one members proportional to population in each
district. The executive power was vested in one person, now called Governor. The Iowa statutes were clearly set
apart from the Organic Law, and the House of Representatives again adopted by statute all of the laws of Iowa, and
attempted once again to clarify exactly what law was in force in the territory when Iowa law was not applicable.
Judicial power was vested in a Supreme Court, and “such inferior courts of law and equity as may by law, from time
to time be established.” The Supreme Court was to consist of one judge, now elected by the House of
Representatives for a term of four years. It was to hold two sessions annually “at such places as by the law
directed.” Its jurisdiction was now to be appellate only, but it was to exercise “a general superintending control” over
inferior courts. The Supreme Court was granted power to issue writs of habeas corpus, mandamus, quo warranto,
and certiorari. Most remarkably, the Supreme Court was given “power to decide upon and annul any laws contrary to
the provisions of these articles of compact. And whenever called upon by the House of Representatives, the supreme
judge shall give his opinion, touching the validity of any pending measure.” This seems to exceed any power of
review given to courts the Legislative Committee might have known about. It may reflect the view of Jesse
Applegate that “an independent and enlightened Judiciary is the greatest safeguard to the liberties of the people.”
The first judge elected under the new Organic Law was Peter Hardemann Burnett. He was the first of Oregon’s
judges under the Provisional Government to have actually studied law, and he quickly became the first to annul an
act of the Legislature. The case involved an application for a ferry license under a statute conferring on the Supreme
Court the power to grant such licenses. The legislative body had granted this power under the Iowa statute requiring
the Supreme Court to perform the duties of county commissioners. However, under the 1845 Organic Act, the Court
was to have appellate jurisdiction only, except in criminal cases, and Judge Burnett found that deciding questions
regarding ferry licenses was not within the jurisdiction of the Court. He treated the distinction between the grant of
jurisdiction in the Organic Act and the legislative enactment as a conflict between the provisions of the articles of
compact and a statute. He exercised the power granted in the Organic Act to annul any contrary laws, ruling that the
Act of the Legislature contravened the Organic Law, and refusing the application.
Judge Burnett resigned after the September 1846 term of the Court, joining several other judges who did not
complete their terms, probably because they were not paid well, or not paid at all. Oregon’s economy at this time
was a barter economy, and even taxes were often paid in kind. Government officials were given vouchers entitling
them to goods from merchants. Perhaps it is not surprising that several of Oregon’s early judges left for California
after the gold strike there, including Judge Burnett.
The 1845 Organic Law for all intents and purposes served as the constitution of Oregon for the remainder of the
period of the Provisional Government. No further major changes were made in the organization of the Supreme
Court. The lower courts were another matter. At the time of Dr. Babcock’s appointment as Supreme Judge with
probate powers, three “magistrates” were also appointed, and they served as justices of the peace until 1843.
Under the 1843 Organic Law, the Supreme Judge continued to act in probate, though now under the laws of Iowa
Territory. The Iowa statutes provided for the appointment of justices of the peace by the governor, but this was not
applicable, given that the Organic Law did not provide for a governor. Instead, the Organic Act required that all
officers should be elected by the voters. The justices of the peace were really keepers of the peace. They were
denied jurisdiction in a number of areas, and under the Iowa statutes could act only in matters in which the amounts
at issue did not exceed fifty dollars.
The 1844 reorganization of the judiciary increased the authority of the justices of the peace, eliminating some of the
areas in which they were denied jurisdiction and allowing jurisdiction in matters at issue involving up to one hundred
and fifty dollars. For some, this large sum apparently raised misgivings. Jesse Applegate advocated a further
reorganization of the courts, with district judges in each county to discharge the duties of the justices of the peace.
He thought that by giving these judges two offices, it would be possible to “…make the compensation of sufficient
importance [to attract] men of ability and information to fill them…By this plan we may have a cheap Government
and competent men to fill the offices—and rid ourselves of the Jack-apes and blockheads that are frequently elected
by the people as J. P.”
The 1845 Organic Law provided for a supreme court and “such inferior courts of law, equity and arbitration as might
be established.” In August, 1845, the House of Representatives responded by creating a supreme court and a
criminal court, both presided over by the Supreme Judge, and district, probate and justice courts, all to be elected by
the legislature. The legislature proceeded to set up the inferior courts in each county, electing three judges for each
county court. They were to sit twice a year, April-May and July-August. One of the three judges was elected for
three years, and designated sole judge of the probate court and president of the county court. As county judges,
they also acted as justices of the peace and held justice courts once a month. They had original jurisdiction over all
civil cases except those assigned to the justices of the peace and over all criminal cases except those given to the
Criminal Court. Appeals from the county courts were to be taken to the Supreme Court, but were limited to matters
exceeding $25. The probate courts were given jurisdiction comparable to the pre-1844 probate court. The Criminal
Court was authorized to try indictments from the county courts “for crimes and misdemeanors punishable corporally
or by fines exceeding $100.” The judge of the Supreme Court was also the judge of the Criminal Court, sitting at a
separate session a week following the Supreme Court session. For this service, he was to be paid another $200 per
year.
Unfortunately, the jail built with the proceeds of the Ewing Young estate burned to the ground in 1845, and the court
had to revert to the earlier practice of boarding prisoners in private homes. This was not popular. A poll conducted
by the legislature found that voters preferred by a margin of 405 to 27 that county judges be elected by the people
rather than by the House of Representatives. This was a clear indication of dissatisfaction with the system of county
courts established in 1845. By November, 1846 half of the original county judges had resigned. At its December,
1846 session, the legislature once again undertook a reorganization of the judiciary. A new circuit court was
established, its judge to be elected by the House of Representatives, again evidencing the desire of the legislature to
remove the second highest court from the direct influence of the voters. The county judges were to be elected by the
people, but their jurisdiction was restricted to “county matters.” The original jurisdiction of the former county courts
was now to be vested in the new circuit court. The eight counties were one circuit, and the judge sat in each county
as the “____Circuit Court, according to the name of the county in which it may be holden.” The Criminal Court was
abolished and its jurisdiction given to the Circuit Court. Probate was now vested in the presiding judge of each
county court, to be elected by the justices of the peace in each county.
This was the last major change in the courts of the Provisional Government.
OREGON’S COURTS UNDER THE TERRITORIAL GOVERNMENT
The 1846 Treaty with Great Britain resolved the Oregon Question and brought the region under U.S. jurisdiction, but
Congress did not act until 1848, when “An Act to establish the Territorial Government of Oregon” was passed. The
Provisional Government functioned under the 1845 Organic Law until March 3, 1849, when Joseph Lane, appointed
governor by President Polk, finally reached Oregon and issued a proclamation setting the new territorial government
in operation.
Article 1 of the Territorial Act (also called the Organic Act of 1848) finally set fixed boundaries for the Oregon
Territory. Articles 2-9 established the executive, legislative and judicial branches of government and detailed their
powers and duties. Article 9 established a supreme court, district courts, probate courts, and provided for justices of
the peace. The supreme court was to consist of a chief justice and two associate justices, any two of whom would
constitute a quorum. Justices were to be appointed for four years. The territory was divided into three judicial
districts, each of which was to be presided over by one of the three justices, who was required to reside in that
district. Appeals from the district courts went to the territorial supreme court. Appeals from the territorial supreme
court “may be taken to the supreme court of the United States, in the same manner and under the same regulations
as from the circuit courts of the United States…” Jurisdiction, both original and appellate, “shall be as limited by law.”
Officers of the territorial government, including justices of the territorial supreme court, were nominated by the
president of the United States and appointed with the advice and consent of the senate. On August 14, 1848,
President Polk appointed the first three judges to the supreme court of the Territory of Oregon. William P. Bryant was
appointed chief justice, and Peter H. Burnette and James Tunney associate justices. However, Turney and Burnette
declined the appointment, as did William A. Hall, appointed a little later, not an auspicious beginning for the new
court. The court did not have its full roster until the fall of 1849, when Orville Pratt and William Strong were
appointed. Even then, the court was often unable to function because two of the three justices were required for a
quorum, and very often only one justice was in residence. That justice was then responsible for administering the
court system and hearing all cases at the district level. A group from Portland protested in a memorial to the
president the failure of the judges to hold court and to carry out other duties. Chief Justice Bryant was in Oregon for
only seven months, and during that time the court convened only once, for one day. He was replaced by Thomas
Nelson, appointed by President Fillmore to fill Bryant’s term.
Judge Strong was assigned the third judicial district, which included all the area north of the Columbia River. This
area now includes the states of Washington and Idaho and part of Montana. Strong realized that it was not possible
for one judge to administer so large an area, and he led a movement to form a separate territory from the area north
of the Columbia. In 1853, Congress passed an act establishing the Territory of Washington. Oregon now had its
present northern boundary, but still included the territory east to the crest of the Rockies.The legal chaos of this early
territorial period is amply illustrated by the fact that the first Territorial legislature in September 1849 made yet
another attempt to clarify what statutes were in effect in the Territory of Oregon by adopting the entire 1843 edition
of the Iowa Territorial Statutes “as herein amended,” and listing all 84 statutes of the Iowa Code, with amendments
specific to Oregon, and repealing by omission “all laws not published in this code…”
Article 14 of the Territorial Act provided that “…the existing laws now in force in the territory of Oregon, under the
authority of the provisional government…shall continue to be valid and operative…” to the extent that they were not
inconsistent with the Constitution or with the Territorial Act. This was a problem since the law put in place by the
provisional government had not been published, and there was great uncertainty as to what the law was. This
enactment of the 1843 Iowa Code was to be the remedy, and it required publication of the code as amended.
Unfortunately, the attorney general of the Territory argued that adopting an entire code of laws was not consistent
with Article 6 of the Territorial Act, which required that “every law shall embrace but one object…” Since laws on a
variety of subjects were adopted in one act, this was a violation of Article 6, and the 1839 Iowa Code was still in
effect. Judges Nelson and Strong agreed with this reasoning, and continued to rely on the 1839 Code in their judicial
districts. Judge Pratt, however, maintained that the enactment of the 1843 version in fact dealt with one subject, the
enactment of a code of laws, and he relied on the 1843 Code in his judicial district. But the code as amended was not
published as required by the statute enacting it due to a dispute between the territorial printer and the secretary of
the territory, so there was less certainty than ever about what the law was in Oregon.
Each session of the legislature through the fifth attempted to “remedy the loose and defective condition of the statute
laws” without being able to produce an authoritative code. This was not resolved until 1853 when a code commission
was appointed to draft a code of laws. The result was the “Kelly Code,” named for James K. Kelly, the chair of the
commission. Kelly produced an entirely new code, incorporating “word for word” that part of the New York Code
relating to “the manner of commencing and prosecuting actions at law,” and other large sections from the New York
statutes, “acknowledged to be superior in legal erudition.” The legislature wiped the slate clean by enacting the
report of the commission wholesale, and Oregon finally had a published code of laws.
Franklin Pierce succeeded Fillmore in the presidency and in April, 1853 he appointed three new justices: George H.
Williams as chief justice and Matthew P. Deady and Cyrus Olney as associate justices. The court improved its
performance greatly under these judges. Williams brought about the publication of the court’s opinions for the first
time, beginning with the December 1853 term. During his tenure as chief justice, the court decided 66 cases, and
Williams himself wrote the opinions in 43 of those.
These judges remained on the bench until near the end of the territorial period, and all were important figures in the
territory. All served as delegates to the 1857 constitutional convention, Deady as president of the convention.
Williams had a distinguished career after his service on the territorial court, serving under President Grant as attorney
general of the United States, and nominated by Grant to be chief justice of the United States Supreme Court, a
nomination that was later withdrawn.
Oregon aspired to statehood from the inception of the territorial government, but it was not until 1857 that the voters
approved a referral from the legislature to hold a constitutional convention and petition to join the Union. The act
providing for this election includes a remarkable preamble setting forth arguments for statehood. Slavery is not
mentioned, but was at this time the subtext of virtually all politics in Oregon and the nation. The provisional
government had taken an antislavery position in adopting the Northwest Ordinance in the 1843 Organic Act,
intending to settle the slavery question west of the Rockies as it had been settled in the old Northwest. However, the
bill that became the Oregon Territorial Act of 1848 was nearly defeated by southern interests who saw the antislavery
position as a denial of their right to take slaves with them into the new territories. The Kansas-Nebraska Act of 1854
permitted territorial self-determination on the slavery issue, and so long as Oregon remained a territory there was
concern about federal intervention on the pro-slavery side, as had occurred in Kansas in the civil strife over slavery in
that state.. Oregonians of all persuasions preferred an Oregon-determined solution to the problem over any federally
imposed one. The vote for statehood in 1857 reflected this preference.
The constitutional convention met in Salem August 17 to September 18, 1857. The document it produced was less
than original. It set up a state government much like other state governments in most respects, and in fact, one
hundred and seventy-two of its one hundred and eight-five sections were more or less copied from the constitutions
of other states.
The debate over the provisions of Article VII on the Judicial Department was perhaps the most contentious of the
convention. The Judicial Department Article as drafted by the Committee on Judicial Department contained more
original ideas than most other sections of the new constitution. The Committee was composed entirely of lawyers and
included all three of the judges of the Territorial Supreme Court. These men had their own ideas about the judiciary.
There were long and heated debates on the jurisdiction of the courts, grand juries, term and number of supreme
court justices, duties of sheriffs and county clerks. Yet the convention finally approved a very unremarkable judicial
article, depending heavily on the Wisconsin Constitution of 1848, and vesting the judicial power in a Supreme Court,
Circuit Courts, and County Courts having general jurisdiction, and allowing for justices of the peace and Municipal
courts. The Supreme Court was to consist of four justices to be elected in districts in which they were to reside.
Terms were to be six years, though initially staggered so that elections would be held every two years. Vacancies
were to be filled by election. The Supreme Court had jurisdiction only to revise the final decisions of the Circuit
Courts. Terms of the Supreme Court were to be appointed by law, but one term was to be held annually at the seat
of government. Circuit Courts were to be held at least twice a year in each county by one of the Justices of the
Supreme Court. The justices were to be relieved of their circuit duties only when the population of the state reached
two hundred thousand, when separate circuit courts would be elected. County judges were to be elected in each
county for four year terms, and to have probate jurisdiction.
The new constitution was adopted in a special election held November 9, 1857. Early congressional action was
expected, and a special election was set for June, 1858 to elect a state legislature and state officers. It was soon
obvious that this date had been set too early. Congress did not act promptly, and there was doubt that the state
would be admitted. Questions were raised as to the sufficiency of the population to justify a representative in
Congress and in the last territorial legislative session, a bill protecting property in slaves very nearly passed. Had it
passed, it is likely that enough members of Congress would have voted against statehood to deny Oregon admission.
However, on February 12, 1859 debate closed, and by a narrow margin the bill admitting Oregon passed. It was
signed by President Buchanan on February 14, 1859. Statehood is dated from this date.
History Post-Statehood
HISTORY OF THE OREGON JUDICIAL DEPARTMENT: AFTER STATEHOOD
by Stephen P. Armitage
Staff Attorney, Oregon Supreme Court FN.
Table of Contents
Link to PDF
***
1862--Supreme Court Expanded to Five Justices, and Fifth Judicial District Created.
1878--Supreme Court Justices Separated from Circuit Court Judges, and Supreme
Court Reduced to Three Justices.
***
1907 -- Legislature Created Office of Commissioner to the Supreme Court.
1909 -- Office of Commissioner Ended; Supreme Court Again Expanded to Five Justices.
***
1910 -- Adoption of Amended Article VII to Oregon Constitution.
***
1913 -- Legislature Created District Court, First New Court under Authority of Article VII
(Amended).
1913 -- Supreme Court Expanded to Seven Justices.
***
1914 -- Examinations for Admission to Oregon Bar No Longer Administered by Supreme
Court.
***
1914 -- Interlude on Judicial Elections: Justice Charles McNary Loses Nomination by
One Vote.
***
1929 -- End of "At Large" Elections to Supreme Court.
1931 -- End of Partisan Judicial Elections for All Courts.
***
1961 -- Creation of Oregon Tax Court.
***
1969 -- Creation of Oregon Court of Appeals.
***
1981 -- Unification of Judicial Department.
***
1998 -- Consolidation of Circuit Courts and District Courts.
***
2009 -- The Oregon Judicial Department Today.
FN. The author wishes to thank a number of people for their gracious assistance with research, ideas, and
suggestions, great and small. In alphabetical order:
The Hon. Thomas A. Balmer, Associate Justice, Oregon Supreme Court;
Mary Bauman, Editor, Publications Section, Oregon Judicial Department;
Cathryn Bowie, Electronic Services Librarian, State of Oregon Law Library;
The Hon. Henry Breithaupt, Judge, Oregon Tax Court;
Meredith E. Debus, Law Clerk to Judge Breithaupt, Oregon Tax Court;
Mary Dougherty, Law Clerk to the Magistrate Division, Oregon Tax Court;
Keith Garza, attorney;
Lora Keenan, Staff Attorney, Oregon Court of Appeals;
The Hon. Rives Kistler, Associate Justice, Oregon Supreme Court;
Jim Nass, Appellate Commissioner, Oregon Court of Appeals;
Becky Osborne, Appellate Court Administrator, Oregon Judicial Department;
Francine Shetterly, Staff Attorney, Oregon Court of Appeals;
Joe Stephens, Librarian, State of Oregon Law Library; and
The Hon. Jill Tanner, Presiding Magistrate, Oregon Tax Court.
Any errors are, of course, my own.
Page updated: April 29, 2009
Text Only | State Directories | Agencies A to Z | Site Map | About Oregon.gov | Oregon.gov
|
File Formats | Oregon Administrative Rules | Oregon Revised Statutes | Privacy Policy | Web Site Feedback
|
Adobe Reader is required to view PDF files. Click the "Get Adobe Reader" image to get a free download of the reader from Adobe.