Witches and the pursuit of them were common in early modern Europe and the Americas. While witches are still prevalent in our culture today, they are often seen as a source of entertainment in movies, children's literature, and during Halloween celebrations. A timely topic for October is the historical relationship between witch trials and the law.
Witchcraft Acts
In the 1500s and 1600s, various laws were established across England, Wales, Scotland, and Ireland to control magic and witchcraft. Among these, England's three primary witchcraft acts had the most impact on additional regulations and history.
The Witchcraft Act of 1542 (33 Hen. VIII c. 8) was the first to define witchcraft and to criminalize it as a felony punishable by death without clergy or sanctuary. The Act was repealed after the death of Henry VIII in 1547 (1 Edw. VI, c12) and was not replaced until five years into Elizabeth I's reign.
In 1562, an Act Against Conjurations, Enchantments and Witchcrafts (5 Eliz. 1. c. 16) reclassified witchcraft as a felony and shifted trials from church settings to secular courts. It also created penalties for first and second offenses that were less severe than death.
In 1604, The Witchcraft Act, officially titled "An Act Against Conjuration, Witchcraft, and Dealing with Evil and Wicked Spirits" (2 Jas. I c. 12), expanded the Act of 1562 by increasing the scope of crimes and expanding the death penalty punishment.
Witch Trials
Most of what we know about England’s historic witch trials comes from records of the assize courts. The Assizes, or Courts of Assize, served as the foundation for civil and felony criminal cases in English counties until 1971.
The book Witch Hunting and Witch Trials: The Indictments for Witchcraft from the Records of 1373 Assizes Held for the Home Circuit, 1559-1736 A.D., offers legal insight and a general historical examination of this time period. Some noteworthy sections include the names of convicted witches, jury instructions, jail rolls, and charging details by date within each monarch's reign.
The book is part of the Notable Trials Collection at the State of Oregon Law Library. This collection is not limited to European trials; it also features notable American cases. Among the collection is The American State Trials, a 17-volume set that includes The Trials of Bridget Bishop and George Burroughs. Bishop was the first person sentenced to death during the Salem Witch Trials in colonial Massachusetts, while Burroughs was the only Puritan minister to be executed.
Trials Collection
The law library's Notable Trials Collection includes significant historical trials from Britain and France, the Nuremberg war crime tribunals, and important American trials spanning from the colonial period to the 1980s. This collection addresses a wide range of topics, including treason, sedition, land use disputes, murder and assassination, court-martials, Cold War espionage, art and obscenity, as well as both judicial and presidential impeachments.
August is National Make-A-Will Month, a yearly reminder about the benefits of creating or updating a will. While end-of-life issues may not be everyone's favorite topic, having a plan can help avoid family disputes and costly court proceedings. The State of Oregon Law Library has several resources to help.
What is a will?
A will is a legal document that determines how your assets are divided upon death and who becomes the caretaker of any minor children. It also allows you to establish a personal representative or executor to carry out your wishes.
What happens if you die without a will?
You are not legally required to draft a will. If you die without a valid will, it is called dying intestate. When this happens, state law and the court determine how your assets get distributed. Assets go to your closest relatives first, as defined by Oregon law, regardless of your relationship with them.
Who can create a will?
In Oregon, any person who is 18 or older and of sound mind may make a will. (ORS 112.225)
Where do you start?
The Legal Information Reference Center is a great starting point. This database contains reference books, legal guides, and forms written in plain language. Look for The Quick and Legal Will Book for instructions on drafting a basic will. The Wills & Estate Planning category lists additional end-of-life planning tools. Both are available online with a State of Oregon Law Library Account. Oregon residents can sign up for a free account online.
The Oregon Barbooks are written by Oregon attorneys and published by the Oregon State Bar. Administering Trusts in Oregon and Administering Estates in Oregon are two books that can assist in your life planning. Available in print and online with a digital token.
When should you update and/or review your will?
It's a good idea to review your will every five years or whenever there is a significant change in your life. Examples of changes include:
Other estate and planning tools
An estate plan is a more comprehensive plan that can be used during life and after death. More specifically, an estate plan often includes a will, trusts, a health directive, and various types of powers of attorney.
Using a lawyer
A lawyer can give legal advice on drafting a will and developing an estate plan. Search for Wills or Estate Planning in the legal directories on SOLL's resource page.
The State of Oregon Law Library (SOLL) is thrilled to announce that we are celebrating our 50th anniversary of providing federal government documents to the public!
The Federal Depository Library Program (FDLP) was created to make sure people have access to government information at the local level. Under Title 44 of the United States Code, the public has free access to government documents in designated depository libraries. SOLL officially joined the FDLP program in February 1974.
There are two types of depositories in the FDLP: regional and selective depositories. Regional depositories receive copies of all federal government documents. In Oregon, our regional depository is the State Library of Oregon.
SOLL is a selective federal depository library. That means we choose which federal publications to add to our collection.
Here are some examples of government documents available at the law library:
Visit the State of Oregon Law Library at 1163 State St., Salem, Oregon or online at https://oregon.gov/soll/
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.