I am requested by the Oregon Bar Association to write a paper on "The
Preparation and Adoption of the First Code."
Before writing about the actual preparation of the first code, I
desire to say something about the confused and uncertain condition of
statutory law in Oregon Territory, prior to 1853, and the reasons
which induced the territorial legislature of 1852-53 to elect three
commissioners to prepare a code of laws for Oregon Territory.
On June 27, 1844, the Provisional Government of Oregon, declared that
"All the statute laws of Iowa Territory, passed at the first session
of the legislative assembly of said territory, and not of a local
character, and not incompatible with the conditions and circumstances
of this country, shall be the law of this government, unless otherwise
modified": Laws, 1843-49, p. 100.
The fourteenth section of the act of Congress of August 14, 1848,
organizing the Territory of Oregon, continued these laws of the
Provisional Government in force until they should be altered or
repealed.
At the first session of the legislative assembly, held at Oregon City,
two acts were passed by that body, which, owing to the construction
placed upon them by the supreme court of the Territory, had a tendency
to produce dissension and discord among the people of Oregon, which
lasted for two or three years. One of these was "An act to provide for
the selection of places for location and erection of the public
buildings of the Territory of Oregon," passed February 1, 1851.
The other act was one which declared to be adopted, and in force,
certain acts of the revised statutes of Iowa Territory published in
1843. The legislative assembly of Oregon by a single act adopted these
acts of Iowa, designating them by their several titles, and the dates
of their passage. This law was generally known as the "Chapman Code,"
owing to the fact that the bill was introduced by and its passage
secured through the influence of Hon. W. W. Chapman, then a member of
the legislative assembly.
Soon after these two acts were passed, their validity was questioned,
especially that of the one which located the public buildings, and
transferred the seat of government from Oregon City to Salem. Those
who denied their validity did so on the ground that they contravened
that clause of the organic act of August 14, 1848, section 6, which
provides that "To avoid improper influences which may result from
intermixing in one act such things as have no proper relation to each
other; every act shall embrace but one object, and that shall be
expressed in the title."
Legal proceedings were soon taken by persons interested in retaining
the capital at Oregon City to declare the act of removal invalid. A
suit brought for that purpose came on for hearing before the supreme
court at Oregon City, in December, 1851. By law the judges of the
district courts composed the supreme court of the territory. They were
Thomas Nelson, Chief Justice, O. C. Pratt, and William Strong. Of
these Nelson and Strong had been appointed by Presidents Fillmore and
Taylor, respectively, while Pratt was holding over under an
appointment of President Polk. The former were Whigs politically,
while the latter was a Democrat. Judges Nelson and Strong convened at
Oregon City, and opened the supreme court there. Judge Pratt went to
Salem under the act which changed the seat of government, but without
a quorum could not hold a session of the court. Judges Nelson and
Strong then decided that the act of the legislative assembly providing
for the selection of places for the location and erection of the
public buildings, passed February 1, 1851, was void, because it
contravened the organic law of August 14, 1848, as before stated. The
opinions of the judges were never published in the Oregon Reports, for
what reason I do not know. Possibly they were not filed with the
supreme court. Judge Pratt claimed that this decision amounted to
nothing because it was not made at the seat of government, as
established by act of the legislative assembly, and in this opinion
that body then assembled at Salem, readily concurred. This heated
controversy about the location of the capital was, however, settled by
a joint resolution of Congress, adopted May 4, 1852 (10 U. S.
Statutes, 146). The first section legalized the act of the territorial
legislature which located the public buildings, and the second section
declared that the late session of the legislative assembly was held in
conformity with the provisions of law. This, of course, ended all
dispute about the location of the capital, but unhappily another
controversy grew out of the construction placed by Judges Nelson and
Strong upon the sixth section of the organic law of August 14, 1848.
For the same reasons which they held the act for the location of the
public buildings void, they also held the act of the legislative
assembly, which adopted the revised statutes of Iowa, to be also
invalid. In other words, these judges held that by adopting several
distinct statutes of Iowa in one act, it necessarily embraced more
than one object. Judge Pratt took a different view and held that the
act of the legislative assembly embraced but one object, to wit, the
adoption of a code of laws of the territory.
The result of these conflicting views of the judges was that in Judge
Nelson's judicial district, composed of Clackamas, Marion, and Linn
counties, and in Judge Strong's district, composed of Clatsop County
and the counties north of the Columbia River, the Iowa Code of 1838,
adopted by the Provisional Government, was held to be in force. Judge
Pratt's district, composed of all the territory west of the Willamette
River, included the counties of Washington, Yamhill, Polk, and Benton,
and in this district the "Chapman Code" of the Revised Code of Iowa
Statutes of 1843, was recognized as the law in force. In the district
of Nelson and Strong, the lawyers would cite the law from the "Little
Blue Book," as the volume of Statutes of Iowa of 1838 was called. In
Judge Pratt's district the same lawyers would quote from the "Big Blue
Book," as the Iowa Code of 1843 was called. There were but three or
four copies of the _little blue book_ in the territory, one of which
was owned by Hon. A. E. Wait. The last time I saw it it was in the
possession of Hon. Benton Killin. There were only two copies of the
_big blue book_ in Oregon and the statutes adopted by the Chapman Code
were not published until the latter part of 1853, when they were
printed by the territorial printer and bound in paper covers. A number
of these printed copies were distributed among the several counties in
the territory, but the uncertainty and doubt as to their validity
made them of little value.
As I said before, Judge Pratt's views of this legal controversy
coincided with those of the legislative assembly, then in session at
Salem, and that body passed an act detaching the counties of Marion
and Linn from the judicial district of Judge Nelson, leaving him only
Clackamas County, in which he resided. In this act it was provided
that the terms of court in Marion and Linn counties should commence
one week earlier than they did under the old law. So Judge Pratt held
court at Salem and Albany under the new law, and a week later in each
county Judge Nelson went to Salem and Albany to hold the district
court under the old law. He found, however, that Judge Pratt had
preceded him, held the courts, and adjourned for the term. Judge
Nelson finding that no business was prepared for hearing before him by
the lawyers, and no jury summoned to try cases, returned somewhat
disgusted to Oregon City, and was soon after relieved by the
appointment of Hon. George H. Williams, as chief justice of the
territory. He went back to his home in New York, where I believe he
still lives [1894.]
I have referred to this almost forgotten history of the early days of
the territorial government of Oregon to show the necessity that
existed for a revision of the statutory laws of the territory. The
uncertainty as to what laws were then in force, and the desire to be
relieved from this condition of affairs was the principal reason which
induced the legislative assembly to pass the act of January, 1853,
providing for the election by that body of three commissioners to
prepare a draft for a code of laws, to be submitted to the next
legislature. In pursuance of this act, the legislative assembly
elected the following commissioners in the order named: James K.
Kelly, of Clackamas County, Reuben P. Boise, of Polk County, and
Daniel R. Bigelow, of Thurston County.
Being first elected, I acted as chairman of the board, and notified
the other commissioners of the time of our first meeting, which took
place some time in March, 1853. We met in the council chamber of the
legislative building, where all our subsequent meetings were held.
The first two or three days were occupied in discussing the general
outline of our duties and the kind of code to be prepared. By common
consent we agreed to accept the New York code of practice as the basis
of our own, but with a notable exception in regard to proceedings in
equity. Mr. Bigelow strongly insisted upon having no separate court of
equity or of equity proceedings, but urged that we should follow the
example of California in this respect. Mr. Boise and I differed from
Mr. Bigelow. We contended that in the organic act of August 14, 1848,
a separate system of equity proceedings was contemplated, wherein it
is provided that "each district court or judge thereof shall appoint
its clerk, _who shall be the register in chancery_": Act, August 14,
1848, § 9.
That it was so understood by the members of the first legislative
assembly appears by the act of September 14, 1849, directing the mode
of proceedings in chancery: See Hamilton Laws.
The system of equity jurisprudence and proceedings in equity adopted
by the first code commissioners has now prevailed in Oregon for forty
years, and during all that time I think has met the approbation of
both bench and the bar.
Another thing agreed upon by the commissioners was that the code
should be prepared so that it might be adopted by the legislative
assembly in several acts instead of one, as was done in the Chapman
Code in 1850. This was done in order to comply with the provisions of
the organic law, which required that every act should embrace but one
object.
These preliminaries being settled it was agreed that each commissioner
should take one subject and prepare the draft for an act upon that
particular branch of the law. During the preparation of these drafts
the commissioners held frequent consultations, as often as once or
twice a week, to discuss and agree upon the proper phraseology to be
adopted, or arrangement of subject-matter in the proposed act.
It was agreed among us that Mr. Boise should prepare the act relating
to executors and administrators, and also proceedings in the probate
courts.
To Mr. Bigelow was assigned the duty of preparing the act relating to
crimes and misdemeanors, and to regulate criminal proceedings. I
undertook to prepare the code of civil procedure in actions at law and
suits in equity.
These three subjects embraced the greater part of the laws which we
undertook to prepare, and, after their completion, the remaining
portion of our work was comparatively easy and brief. According to my
recollection it was completed in the latter part of the summer or
early fall of 1853. We prepared the draft for an entirely new code of
statutory laws, with the single exception of the law relating to
wills. This had been enacted by the legislative assembly in 1849, at
its first session, the main features of it being a transcript from the
Missouri statute on the same subject. As this was one of the first
acts passed by our own legislation we adopted it in our draft with
only a few verbal changes.
In the spring of 1853 Joseph G. Wilson, afterwards Judge Wilson of the
supreme court, came to Oregon, and about May we employed him as our
clerk to transcribe the drafts prepared by us, in order that they
could be printed for the use of the legislative assembly at its next
session in December. We caused about two hundred copies to be printed
by Mr. Asahel Bush, the territorial printer, for that purpose. These
were published in an unbound octavo volume, so that they could be
readily separated into different bills for legislative use.
Soon after we entered upon the discharge of our duties as
commissioners many of our political friends suggested the propriety of
electing one or all of us members of the next legislative assembly, so
that we could explain to the members or give any desired information
to them concerning our work. We soon, however, learned that Congress
had passed the act to organize the Territory of Washington, and this
would necessarily prevent Mr. Bigelow from becoming a member of the
Oregon legislative assembly.
Mr. Boise was nominated by the Democratic party as a candidate for
member of the House of Representatives from Polk County. I was
nominated by the same party as member of the Council, to fill a
vacancy caused by the resignation of Hon. A. L. Lovejoy, who had
recently been appointed Postal Agent for Oregon by President Pierce.
Both Mr. Boise and myself were elected on the first Monday in June,
1853.
The legislative assembly met on the first Monday in December, and
after the respective houses were organized Mr. Boise was appointed
chairman of the Judiciary Committee in the lower house, while I was
appointed chairman of the same committee in the upper branch of the
legislature. Of course, the burden of seeing the code properly passed
rested with him and myself. We divided the draft which the code
commissioners had prepared into proper bills, according to the
subject-matter of each. Some of these bills were introduced into the
House of Representatives by Mr. Boise, and others of them into the
Council by myself. All we had to do was simply to preface an enacting
clause to the bill as it had been printed by order of the
commissioners, and to insert a section at the end of each bill
declaring that the act should be in force from and after the first of
May next. The reason these acts were made to take effect on May 1,
1854, was that there was no possibility of having them printed before
that time. Indeed, there were no facilities then existing in Oregon
for either printing or binding the volume containing the statutes
comprised in the first code. Mr. Bush, the territorial printer, made
arrangements to have them printed and bound in New York. I do not now
remember how many copies of the code were ordered to be printed, but
certainly several hundred. About two hundred of these were sent to
Oregon by way of Panama and arrived safely some time in the summer of
1854. The remaining copies of that edition were sent around Cape Horn
by a sailing vessel. These never reached Oregon. They were either
shipwrecked or so injured that they were worthless. At the next
session of the legislative assembly, commencing in December, 1854,
that body ordered a new edition to be printed to supply the place of
the copies which were lost at sea, and that edition was printed in New
York in 1855. It included the acts which were passed at that session
with those of the code adopted at the preceding session of the
legislature. This accounts for the printing of two editions--one in
1854 and another in 1855.
Between May 1, 1854, when the code took effect and the arrival of the
first copies of the printed volume from New York, we were somewhat
troubled for want of evidence of existing statutes, and the judges and
lawyers used in the courts copies of the printed draft reported by the
code commissioners. A few of these unbound volumes still remained and
such changes as had been made by the legislature were noted in them.
Some of the lawyers even went to the trouble of having them indexed so
as to be more convenient for reference and citation. When, however,
the first copies of the code arrived from New York these unbound
copies of the code commissioners' draft were thrown aside. One of them
I kept as a time-honored curiosity for many years.
Although the _Oregon Code_, as it was then termed, has since been
revised two or three times to adapt it to a state, instead of a
territorial government, yet in its main features it has remained
substantially the same as when prepared by the first code
commissioners and adopted by the legislative assembly of 1853-54.
The commissioners who prepared the first code of Oregon are all still
living [1894], but nearly all the members of the legislature that
adopted it are gone. Besides Judge Boise and myself I can think of no
one of them who is now living.