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Oregon Courts Under the Provisional Government

A description by Joe K. Stephens, Law Librarian.

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Oregon's Courts Under the Provisional Government

Oregon Courts Under the Provisional Government

This paper is the first in a two-part series on the history of the Oregon Judicial Department. The first part discusses the history of Oregon's courts prior to statehood in 1859, and includes the adoption of the Oregon Constitution. The second part of the history, written by Stephen P. Armitage, Staff Attorney, Oregon Supreme Court, begins just after statehood, and continues through today.

Part Two: History Post-Statehood


By Joe K. Stephens
Law Librarian 


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.

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