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Oregon Courts Under the Territorial Government

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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.

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