ZttiU'
University of California • Berkeley
THE PETER AND ROSELL HARVEY
MEMORIAL FUND
2^
m&
Abrc
&V*F
Francis Xavier Novitu
rl:
' ff^r
HISTORY
OF THE
BENCH AND BAR
OF
OREGON
HISTORICAL PUBLISHING COMPANY PORTLAND, OREGON
1910
HISTORY OF THE BENCH AND BAR OF OREGON
Photos by
C. ELMER GROVE, Portland CHAS. BUTTERWORTH, Portland AUNE STUDIO, Portland A. B. McALPIN, Portland E. W. MOORE, Portland DAVIES STUDIO, Portland UP-TO-DATE STUDIO, Astoria JENSON STUDIO, McMinnville CLARK'S STUDIO, Roseburjr GIFFORD, The Dalles MILLER PHOTO CO., Klamath Falls WHEELER'S STUDIO, Pendleton ELITE STUDIO, Baker City R. J. RITTER, La Grande H. J. STADDEN, Marshficld TROVERS' STUDIO, Salem
Press of
BUSHONG & COMPANY, Portland
FOREWORD
ONE is embarrassed, not so much with the lack of material as the abundance of it, in the preparation of a work like the present. It is probable, that when all is written, there will be found some omissions, and it is also probable that some matters may be expressed herein that were better left unsaid; but "it is human to err." May we be forgiven if we have "done the things we ought not to have done."
It should be a matter of pride to remember that most of the great events of the world have had a lawyer somewhere connected with them. "It was a lawyer who moved the Declaration of Inde- pendence; it was a lawyer who wrote the Declaration; thirty out of fifty-five members constituting the constitutional convention were lawyers . . . the very web and woof of that instrument, every arch and key composing that wondrous structure, was proposed, pol- ished and set in order by lawyers, most conspicuous of whom were James Madison and James Wilson." A lawyer it was whose brain evolved the Declaration of Independence of the Republic of Texas. It was Chief Justice Marshall's master mind that gave practical ef- fect to our national constitution.
The Magna Charta that was wrested from King John was written by lawyers. To Sir Edward Coke is owing the Petition of Rights, and it was he who dared to declare that the king is not above the law. It is to a lawyer we are indebted for the drafting of the Habeas Corpus Act. The Statute of William I and Mary I, settling the succession of the crown and establishing the rights of the sub- ject, was the work of a lawyer. Upon this statute was based the first eight amendments to the Federal Constitution, and from them, again, come the Declaration of Rights which are embodied in the constitution of every state in the Union.
The Reform Bill adopted in England in 1832 was the work of a lawyer, and it was a lawyer who proclaimed the present Republic of France, in 1870. Twenty American Presidents were lawyers, and the majority of the members of Congress are lawyers. Hamilton, Walker, Chase, Sherman and Carlisle, five of the United States Sec- retaries of the Treasury, were members of the legal profession. Phelps, Bayard, Choate, the great American ambassadors, were law- yers. So, too, were Presidents Polk, Lincoln and McKinley. The great names of Madison, Hamilton, Jay, Livingston, Ellsworth, Sher- man, Johnson, Fisher, Ames, Parsons, Marshall, Wythe and scores
of other brilliant legal minds, add lustre to this honorable profes- sion. It is true that "lawyers are, and have been in all ages, the chief defense and preservers of free institutions and of public and individual liberty."
Masterly in its simplicity, was the word picture of a court room, painted by Judge Martin L. Pipes, the well-known Portland lawyer, in his address delivered before the Oregon State Bar Association, November 17, 1909, in which he said:
"The court room is the one place where the citizen comes into daily contact with his Government. Other departments are more or less remote from him; their action affecting him more or less indi- rectly. But here he is in the presence of the dignity of the state, the corporeal symbol of justice, the beneficent tribunal that protects him in his legal rights; and when he approaches that bar, he need not come with bated breath to plead for favors, political or other- wise, nor bow his head to conciliate the frown of favor; but he stands in that presence shorn of every badge of station, high or low, and as free and as equal as he was born. In other places and in other situations the inequalities of life affect him.
"But when he enters the door of a court of justice, he leaves behind him all distinctions, all advantages and disadvantages, all questions of social or political influence, all the handicap of poverty, all the prestige of wealth, and stands mantled only with the invis- ible but impermeable robe of simple citizenship. It is so because he is in the place where the law must prevail. There is, therefore, no place in this ideal court for any other influence than the judge's sense of justice and of his loyalty to the law."
Many of the great lawyers and judges who have made Oregon famous, have passed from the earthly forum to the Great Bar of Judgment. They have left their record behind them. There they stand equal with all other men, yet in their work here they still speak, albeit they stand in "the silent halls of death." Oregon has reason to be proud of these men, for it is owing to their care and wisdom that we have our present rights so well safeguarded.
In a work of this kind there is little opportunity for absolutely strict originality, unless it may be in the form of expression, and therefore we should not be accused of plagiarism. Indeed, by its very nature, one must follow often the exact words of other writers. As to any possible charge of plagiarism, we would respectfully refer the reader to two distinct writers in the American school of litera- ture—Ralph Waldo Emerson and Samuel L. Clemens (Mark Twain) in justification. Emerson says:
"It has come to be practically a sort of rule in literature, that a man, having once shown himself capable of original writing, is enti-
tied thenceforth to steal from the writings of others at discretion. Thought is the property of him who can entertain it, and of him who can adequately place it. A certain awkwardness marks the use of borrowed thoughts; but as soon as we have learned what to do with them, they become our own."
Mark Twain, in a letter to the editor of the Grants Pass Observer in 1887, said:
"A considerable part of every book is an unconscious plagiarism of some previous book. There is no sin about it. If there were, and it were of the deadly sort, it would eventually be necessary to restrict hell to authors — and then enlarge it."
From Homer's time to the present authors have borrowed from the writers who preceded them; yes, indeed, from the time "'Omer struck his bloomin' lyre."
BENCH AND BAR OF OREGON
In a work like the present, one is not necessarily restricted by the title to a mere review of the great jurists, lawyers and statesmen whose names adorn the history of the state. Indeed, it is necessary and proper, if not absolutely unavoidable, to make frequent refer- ences to the history of Oregon, past and present, to properly delin- eate the boundaries of that vast stage upon which great characters have appeared.
The Oregon of today, large as it is, with its 96,030 square miles of area, is not the Oregon of the past. The original Oregon Country included the present Oregon, the states of Washington, Idaho, part of Montana and Wyoming, and all of British Columbia west of the Rocky Mountains and south of the Alaska line of 54 degrees and 40 minutes. It was greater than the combined areas of the thirteen colonies at the time of the Revolution, and included the entire terri- tory between the Rocky Mountains and the Pacific Ocean, the Alaska boundary on the north and the California boundary on the south. Even in 1843, Senator McDuffie, of South Carolina, had so little discernment as to scoff in the Senate at the possibility of building a railroad to the mouth of the Columbia River, and thanked God for having placed the Rocky Mountains in the way so as to make this country unapproachable.
What was the opinion of Thomas Jefferson all know, especially after the Lewis and Clark expedition of 1805, whose centennial was so splendidly celebrated at Portland in 1905. With magnificent foresight, Senator Baylies, of Massachusetts, in 1823 uttered these words:
"Our natural boundary is the Pacific Ocean. The swelling tide of our population must and will roll on until that mighty ocean in- terposes its waters and limits our territorial empire. Then, with two oceans washing our shores, the commercial wealth of the world is ours, and our imagination can hardly conceive the greatness, the grandeur and the power that awaits us."
The present State of Oregon has a length of 395 miles from east to west, and a width, from north to south, of 278 miles. Should one combine the areas of New Hampshire, Vermont, Rhode Island, Con- necticut and New York, he would find that Oregon contains 2,500,- 000 acres more than all these states together. Should the areas of
8 HISTORICAL
Indiana and Illinois be combined, Oregon would be found to con- tain 3,030 square miles more than their united area. The original Oregon Country, ceded by Great Britain, June 15, 1846, contained 307,000 square miles. The state lies between latitude 42 degrees and 46 degrees 18 minutes north, and between 116 degrees 33 min- utes and 124 degrees 25 minutes west longitude.
By act of Congress, March 2, 1853, Washington was carved from this vast domain, and organized as a separate territory. Idaho was taken, and organized as a territory, March 3, 1863; Montana, May 26, 1864; Wyoming, July 25, 1868— and what we know as Oregon of today, was left.
Oregon is divided into the following districts:
First — The territory in the northeastern part of the state, bounded by the Snake and Columbia Rivers.
Second — Central Oregon, including the Hood River region.
Third — The Willamette Valley, 135 miles long, and from 25 to 40 miles wide, extending from Portland to Eugene, including eight counties and covering 4,000,000 acres.
Fourth — The Coast region, beginning at the confluence of the Willamette and Columbia Rivers, twelve miles below Portland. It includes the entire western coast of the state south to the California boundary.
Fifth — Southern Oregon. This includes the Umpqua and Rogue River valleys.
Sixth — Southeastern Oregon. This includes two subdivisions— the semi-arid, rolling hills and plateaus south of the Deschutes, Crooked River, Harney and Malheur valleys; the lake region north of the California boundary line.
It is fitting and proper that considerable reference should be made to the Columbia River, the northern boundary of Oregon. Its sources are legion. It drains its immense volume of water from the melting snows of eight great mountain ranges. The region it drains is a greater one than that of the combined areas of all the Middle and New England states. When the happy phrase "Inland Empire" is applied to this vast territory, it is no merely fanciful title. When William Cullen Bryant penned the line "Where rolls the Oregon," he referred to the Columbia.
For two hundred years the exact location of the Columbia was not defined. It was nearly as mythical as the fabled Styx of the old-time Greek. It ranked alongside that imaginary creation — the Straits of Anian — the supposedly existing waterway around the northern end of the North American continent.
HISTORICAL 9
Passing over the accounts of the early Spanish navigators who sighted this stream, we find that Captain George Vancouver, an officer of the British navy, to whom is due some of the geographical names now known along the Columbia, arrived off the mouth of the river April 27, 1792. He tried to locate the Straits of Anian, the Straits of Juan de Fuca, the Rio de Aguilar, the Rio de los Reyes and the Oregon River. He concluded that the mouth of the Columbia was only an inlet. Sailing north he encountered the Co- lumbia Rediviva, an American ship from Boston, commanded by Captain Robert Gray. Gray attempted to convince Vancouver that what he had seen was in reality the mouth of a river, but the latter obstinately held to his opinion. Gray sailed south and succeeded in entering the river and sailed upstream for a distance of ten miles. The English after hearing of Gray's achievement, effected an en- trance into the river by means of the Chatham, in charge of Lieu- tenant W. R. Broughton. He proceeded only a short distance, before dropping anchor. By means of row boats he ascended the stream to the point where the present City of Vancouver, Washington, is located. Regardless of what Captain Gray had accomplished, Broughton took possession of the entire region in the name of King George, and upon this England based its claim of ownership until the Treaty of 1846 settled the title in favor of the United States.
The Portland Oregonian has this to say of "Champoeg Day," which is apropos of those far-off days when the Provisional Govern- ment was founded, of which event F. X. Matthieu is the sole sur- vivor:
' 'Champoeg Day' does not arouse the enthusiasm even among the old settlers of the Willamette Valley to which, by reason of its important place in the state's beginnings, it is entitled.
"Ten years ago this day (May 2, 1900) was rescued from the dim aisles of our past, and through the revival of memory was given de- served prominence in local history. Earnest effort on the part of a few men, sustained and encouraged by a number of women, re- sulted in procuring a movement to mark suitably the spot where the first form of civic government by Americans in the great Ore- gon Country was instituted. This monument was duly engraved with the names of the half-hundred men of the wilderness, men who had reached the place of the meeting on horseback, on foot and by canoes on the appointed day. A simple block of gray granite, plain as were the lives of the men whose names it holds, was placed as nearly as could be determined and as the crumbling bank of the river' at that place would permit, upon the spot where a chorus of 'Ayes' went up on that May day in 1843 in answer to the question, 'Shall a provisional government be established in Oregon by Ameri- cans?'
10 HISTORICAL
"Each year since the monument was placed, 1900, there has been a rally around it of those most deeply interested for memory's sake and all who have cared to listen have heard anew the tale that his- tory tells of the rally of that far away day and year. A total of 102 men were present on the initial Champoeg Day, sixty-seven years ago. The names of all of those who voted for the organization of some form of civil government in the Oregon Country have been chiseled upon the granite block that is a silent sentinel of the spot. The memory of that day, as far as its living witnesses go, will soon be blotted out. But the work then and there begun lives and will live in a happy, free and prosperous commonwealth, over which floats the American flag."
Though the idea of a Provisional Government was formed May 2, 1843, its real adoption occurred July 26, 1845. The center of white population was in the Willamette Valley and comprised less than 300 Americans, made up mostly of Protestant missionaries and their families, together with a few others. There were also about seventy-five French-Canadians. The Provisional Government was established by a vote of fifty-two for to fifty against. This form of government continued until the organization of the Territorial Gov- ernment in 1849. It embodied a code of laws adopted by the Ameri- can immigrants and British subjects. Primarily it had no executive head, but an executive committee of three. The expenses of admin- istration was provided for by voluntary subscription, there being no provision for taxation. With the increase in population, a system of taxation was adopted and a Governor elected.
At the celebration of the fiftieth anniversary of Oregon's admis- sion as a state, held at Salem, Monday, February 15, 1909, F. N. Judson, of St. Louis, in his address, said:
"An anomalous provision of this Provisional Government was its creation and maintenance by men who owed allegiance to different sovereignties, whose relations were at times strained even to the point of threatened war. The oath of the officials of this Government expressly reserved the duty owing as a citizen of the United States, or as a subject of Great Britain."
For twenty-five years after 1819, the Oregon territory was jointly held by England and the United States. The claim of the latter was based upon the discovery and exploration of the Columbia River in 1792 by Captain Gray, the explorations of Lewis and Clark, the set- tlement at Astoria and the acquisition of the rights claimed by Spain under the Florida treaty of 1819. Great Britain claimed the entire country south to the Columbia River, chiefly by reason of the occu- pancy of the territory by the Hudson's Bay Company.
The Louisiana Purchase of 1803 comprised the territory ceded
HISTORICAL 11
by Spain to France and later re-ceded to France. This was sold to the United States, but was never asserted as a basis for title by the latter. In 1892 Dr. Fiske said at Astoria: "Neither the purchase of 1803 nor that of 1819 would have gone far towards giving Oregon to the United States, unless the shadowy, metaphysical claims had been supplemented by the solid facts of occupancy and possession."
The treaty of June 15, 1846, between England and the United States, provided that the boundary line should be the forty-ninth parallel to the middle of the channel which separates Vancouver Island from the mountains; thence southerly through the middle of the channel through Juan de Fuca Straits to the Pacific Ocean. Question arose as to which channel was meant, there being doubts as to which country Washington Sound and its islands belonged. In 1859 the two governments effected a friendly modus vivendi by joint occupation, Great Britain establishing a garrison at the north end and the United States one at the south. In 1871, Emperor Wil- liam of Germany, to whom the matter was referred for arbitration under the Treaty of Washington, decided in favor of the United States.
After Oregon was organized as a territory, General Joseph Lane, of Indiana, was appointed Governor. By the enactment by Congress on September 27, 1850, of the Donation Land Law, a legal basis for private land titles was established. By its terms possession claims priorily established, were legally sanctioned. By the appointment of General Lane, civil government was thereby inaugurated, and courts, for the first time under governmental authority, were organized.
February 14, 1859, the act admitting Oregon as a state was ap- proved by President Buchanan, and it entered the Union as the thirty-third state. Oregon was the last state to be admitted before secession by the Southern states begun, as Kansas was not admitted until January, 1861.
In preparing an account of the affairs and the men of the early days who created them, based upon information from many sources, we have not attempted to set our work by hard and invariable lines, nor to always follow events exactly in their chronologic order. To refer again to the Provisional Government, even though it may prove a repetition. It is a pleasure to peruse the addresses of George H. Williams relative to those primitive times.
"Here were a few scattered people," said he, "without any po- litical or social organization; they were exposed to the hostilities and depredations of wild animals; instinctively the idea of getting together for mutual protection began to work; neighbors consulted with each other about the situation, and finally a meeting of about one hundred persons comprising a large part of the men of the
12 HISTORICAL
territory, was held at Champoeg, to take into consideration the for- mation of a government; committees were appointed, meetings held, officials named, and the ideas about a government were working towards a result, but nothing definite was accomplished until 1845 when a Provisional Government was adopted— that is to say, a local government, to exist until a government was established over the territory by the United States."
Judge Williams paid a beautiful tribute to Dr. John McLoughlin, "the Father of Oregon," in one of his famous addresses. He said, inter alia: "He had more influence with the Indians than any other man who ever lived on the Pacific Coast; they reverenced and feared him. He was a born commander of men. I remember his long sil- very locks, his ruddy complexion, his powerful frame, and accom- plished manners. I can say of him with as much truth as any man I ever saw that he was one upon whom every God had seemed to set his seal to give the world assurance of a man. His claim to the grateful remembrance of the people of Oregon is founded upon the fact that when the emigrants arrived from the plains poor and needy, he fed the hungry, clothed the naked, and helped them to start life anew in their new homes. He lost his standing with the British company on account of his friendship for American settlers; he moved from Vancouver, where at one time he reigned supreme, to Oregon City, where he died."
The late Rev. B. Wistar Morris, Episcopal Bishop for Oregon, in an address before the Oregon Pioneer Association in 1896, re- ferred to the Treaty of 1846 between Great Britain and the United States regarding the Oregon territory, in an interesting manner. He said:
"Some facts in the history of this very treaty whose anniversary has brought us here, will give striking illustrations of the real con- dition of things, then, in this regard. So far away and inacessible was this country fifty years ago, that the joyful news of this treaty of June 15 did not reach this country until the 12th of November, five months after it was ratified by the United States Senate, and then by the roundabout way of the Sandwich Islands. The poor, un- fortunate and anxious dwellers in the territories of Oregon and Washington were living all this time without one of them knowing whether he or she was a Britisher or a Yankee. This news was brought here by a vessel, the bark Toulon, trading between the Sandwich Islands and this port (Portland), of which Mr. Benjamin Stark, a gentleman well known to many of my hearers, was the supercargo."
In a letter received by Bishop Morris from Mr. Stark, at that time residing at New London, Conn., the latter said:
"One of the immediate consequences was the withdrawal of the
HISTORICAL 13
British sloop-of-war, Modeste. The presence of this vessel anchored in front of the Hudson Bay station at Vancouver, since the fall of 1845, had been a source of constant irritation to the hardy band of immigrants settled in the valley of the Willamette."
OREGON COUNTIES.
We are indebted to the able researches of Frederick V. Holman, a prominent member of the Multnomah County bar, for the infor- mation herein contained, relative to "Oregon Counties: Their Crea- tion and Origin of Their Names," in an address delivered December 18, 1909. Of these in their order.
Oregon originally comprised four districts— Twality, Yamhill, Clackamas and Champooick (created by the Provisional Government at Champoeg). Champooick County, as it existed September 11, 1849, was named Marion County by act of Legislature bearing this date.
By the act of September 3, 1849, the Provisional Legislature changed the name of the Twality District to Washington County.
Be it remembered that Champoeg was the principal Indian vil- lage between Chemetka (Salem) and the Falls of the Willamette. After Clatsop and Polk Districts were created, the Provisional Leg- islature, by an act approved December 22, 1845, changed these dis- tricts to counties. The Provisional Legislature created Clatsop dis- trict June 22, 1844.
Polk District was created December 22, 1845.
Benton County was created December 23, 1847; Linn County, De- cember 28, 1847; Washington County, September 3, 1849; Marion County, September 23, 1849; Lane County, January 25, 1851.
The Territorial Legislature created Umpqua County, January 24, 1851. January 7, 1852, the Legislature created Douglas County out of the eastern portion of Umpqua County. When Coos County was formed, December 22, 1853, a portion of Umpqua County was in- cluded. October 16, 1862, what was left of Umpqua County was ab- sorbed by Douglas County, and Umpqua County passed off the stage.
Jackson County was created January 12, 1852. Tillamook County was created December 15, 1853, and was made up of the western portions of Yamhill and Clatsop counties "and, possibly, of Polk County." Wasco County was created January 11, 1854; Columbia County, January 16, 1854.
Mr. Holman says: "Multnomah County was created by the Territorial Legislature, December 22, 1854. It comprises a part of the eastern portion of Washington County and a part of the north-
14 HIS T O R I C A L
ern portion of Clackamas County. It is the smallest but the most populous and wealthy county in Oregon."
Curry County, named for George L. Curry, the last territorial Governor of Oregon, was created December 18, 1855.
Josephine County comprised a part of the western portion of Jackson County, and was created January 22, 1856. Baker County was created by the State Legislature September 22, 1862. The State Legislature created Umatilla County September 27, 1862, and Grant County, October 14, 1864. Union County was created October 14, 1864; Lake County, October 24, 1874; Klamath County, October 17, 1882; Crook County, October 24, 1882; Morrow County, February 16, 1885; Gilliam County, February 25, 1885; Wallowa County, Feb- ruary 11, 1887; Malheur County, February 17, 1887; Harney County, February 25, 1899. The latter county comprises what were formerly the southern and middle portions of Grant County.
Sherman County was created February 25, 1889; Lincoln County, February 20, 1893; Wheeler County, February 17, 1899; Hood River County, June 23, 1908.
Oregon contains thirty- four counties. They are: Baker, Ben- ton. Clackamas, Clatsop, Columbia, Coos, Crook, Curry, Douplas. Gilliam, Grant, Harney, Hood River, Jackson, Josephine, Klamath, Lake, Lane, Lincoln, Linn, Malheur, Marion, Morrow, Multnomah, Polk, Sherman, Tillamook, Umatilla, Union, Wallowa, Wasco, Wash- ington, Wheeler and Yamhill.
Though all lawyers are advised on the subject, it is proper to note in this connection that the Judicial Districts of the state as at present constituted, are as follows:
First (First Prosecuting Attorney District)— Jackson and Jose- phine counties; (Second Prosecuting Attorney District) — Klamath and Lake counties.
Second (Third Prosecuting Attorney District) —Coos, Curry and Douglas counties; (Fourth Prosecuting Attorney District) — Benton, Lane and Lincoln counties.
Third — Linn, Marion, Polk, Tillamook and Yamhill counties.
Fourth — Multnomah County.
Fifth — Clatsop, Clackamas, Columbia and Washington counties.
Sixth — Morrow and Umatilla counties.
Seventh — Crook, Hood River and Wasco counties.
Eighth — Baker County.
Ninth — Grant, Harney and Malheur counties.
Tenth — Union and Wallowa counties.
Eleventh — Gilliam, Sherman and Wheeler counties.
Thirteenth— Klamath and Lake counties.
HISTORICAL 15
Oregon has had five codes, and a sixth is in course of prepara- cion. The first — the Code of 1851— was compiled by Judge James K. Kelly. The second was the work of Matthew P. Deady and La Fayette Lane (1874). The Annotated Code of 1867 was due to the labors of W. Lair Hill, as was also that of 1892. The Cotton and Bellinger Code was the result of the joint action of W. W. Cotton and the late Judge Charles B. Bellinger. It appeared in 1902. The Oregon Legislature of 1909 authorized a new code, and Governor Benson appointed W. P. Lord to the task.
So far as we have been enabled to discover, the first lawyer to arrive in Oregon was A. L. Lovejoy, who came here from Massachu- setts. He was one of the original townsite owners of the present City of Portland.
PRIOR TO THE PROVISIONAL GOVERNMENT.
Prior to the Provisional Government there were four Executive Committees chosen. Of these in their order:
First Committee (February 18, 1843) comprised David Leslie, chairman; Sidney Smith and Gustavus Hines, secretaries, who were chosen to frame a Constitution and Code of Laws for Oregon.
The Second Committee ( 1843) consisted of Robert Moore, Speaker and chairman; George W. LeBreton, clerk.
Third Committee (1844)— M. M. McCarver, Speaker; Dr. John E. Long, Territorial Recorder or clerk.
Fourth Committee (1845)— M. M. McCarver, Speaker; J. E. Long, Territorial Recorder; Mr. Shaw, sergeant-at-arms; Revs. Clark, Hill and Demarse, alternate chaplains.
August 5, 1845, at Oregon City, the Legislative Committee held its first special session after the ratification of the organic system of laws and the inauguration of Hon. George Abernethy as Pro- visional Governor. The session closed August 20. The officers were: M. M. McCarver, Speaker; J. E. Long, Territorial Recorder and ex officio clerk; Fred Prigg, engrossing clerk.
December 2, 1845, the first regular session cf the Provisional Legislative Assembly was held at Oregon City, at the residence of T. McGruder, ending December 19. Robert Newell was Speaker; J. E. Long, Territorial Recorder and ex officio chief clerk; Theophi- lus McGruder, sergeant-at-arms.
The second Provisional Legislature met at the home of H. M. Knighton, in Oregon City, December 1, 1846, and comprised, as officers, A. L. Lovejoy, Speaker; N. Huber, chief clerk; H. M. Knigh- ton, sergeant-at-arms.
December 28, 1847, marks the third regular session of the Pro- visional Legislature, held at Oregon City, which continued in session
16 HISTORICAL
until December 28. The Speaker was Robert Newell; chief clerk, Calvin W. Cook; engrossing clerk, J. E. Lyle; sergeant-at-arms, William Holmes.
The fourth and last session of the Provisional Legislature con- vened December 5, 1848, and adjourned to February 5, 1849. The officers were: Ralph Wilcox, Speaker, who resigned, and was suc- ceded by L. A. Rice; W. G. T'Vault, chief clerk; William Holmes, sergeant-at-arms; James S. Cluse, engrossing clerk; S. H. L. Meek, doorkeeper; Wilson Blain, chaplain.
This brings our subject up to the time of the Territorial Govern- ment, and the first regular session of the Territorial Legislature, July 16, 1849, to September 29, 1849.
We are especially indebted to the kindness of George L. Himes, secretary of the Oregon State Historical Society, for the list of names of the fifty-two persons who met at Champoeg, May 2, 1843, to vote for the adoption of the committee's plans for a Provisional Government. These were:
Dr. Ira L. Babcock, W. H. Wilson, G. W. LeBreton, W. H. Gray, Joseph L. Meek, David Hill, Robert Shortess, Dr. Robert Newell, Reuben Lewis, Amos Cook, Caleb Wilkins, Hugh Burns, Francis Fletcher, Sidney Smith, Alanson Beers, T. J. Hubbard, James O'Neil, Robert Moore, W. P. Doughty, L. H. Judson, A. T. Smith, J. C. Bridges, Rev. Gustavus Hines, Rev. David Leslie, John Howard, William McCarty, Charles McKay, Rev. J. S. Griffin, George Gay, George W. Ebberts, Rev. J. L. Parrish, Rev. Harvey Clark, Charles Campo, Dr. W. J. Bailey, Allen Davie, Joseph Holman, John Ed- munds Pickernel, Joseph Gale, Russell Osburn, David Weston, Wil- liam Johnson, W. Hauxhurst, William Cannon, Medorem Crawford, John L. Morrison, P. M. Armstrong, Calvin Tibbetts, J. R. Robb, Solomon H. Smith, A. E. Wilson, F. X. Matthieu, Etienne Lucier.
The list of French Canadians present who voted against the adoption of the committee's report is incomplete, but among them were the following:
Xavier Laderoute, Antoine Bonanfant, Andre LaChapelle, Pierre Papin, Louis B. Vandalle, Jean B. DuCharme, Fabien Maloine, Luc Pagnon, Etienne Gregoire, Amable Arcouette, Pierre DeLord, Louis A. VanDalle, John Sanders, Pierre Bariseau, Charles Rondeau, David Donpierre, Andre DuBois, Pierre Depot, Moyse Lor, Pierre LeCourse, Gedereau Sencalle, Thomas Moisan, Pierre Gauthier, Joseph Ber- nabe, Baptiste Deguire, Adolphe Chamberlain, Jean Lingras, Alexis Aubichon, Jean Servans, Michelle Laferte, Jean B. Dalcourse, Louis Osent, Jean B. Aubichon, Antoine Felice, Michel LaFramboise, Jo- seph Gervais, Jean B. Panpin, Olivier Briscbois, Thomas Roa, Louis
HISTORICAL 17
Boivers, Andre Langtain, Elexis LaPratte, Pierre Belique, Augustin Remon, Joseph Matte, Francois Bernier.
By courtesy, Dr. John McLoughlin, director of the Hudson's Bay Company (1823 to 1843), is called a "Governor of Oregon."
STATE OFFICIALS IDENTIFIED WITH THE BAR.
Many of the public men of Oregon, who have been honored with state offices or who have represented the interests of Oregon in the Congress of the United States, have been identified with the legal profession. As nearly a correct list as it has been possible to as- semble, is here given:
Governor John Whiteaker (March 3, 1859, to September 10, 1862), who was the first Governor after Oregon was admitted as a state, was County Judge of Lane County in 1856.
Addison C. Gibbs, Oregon's second state Governor (September
10, 1862, to September 12, 1866), was admitted to the bar in 1849.
George L. Woods, Oregon's third state Governor (1866 to 1870), was admitted to the bar in 1858 and appointed County Judge of Wasco County in 1863. He practiced law in San Francisco for ten years and in Portland from 1885 to January 14, 1890, when he died.
LaFayette Grover, the fourth state Governor of Oregon (Septem- ber 14, 1870, to February 1, 1877), was appointed clerk of the First Judicial District in 1851, and shortly after Prosecuting Attorney for the Second Judicial District.
Stephen F. Chadwick, the fifth state Governor (February 1, 1877, to September 1 1, 1878), was admitted to the bar in New York in 1850. He begun his practice in Oregon in the Umpqua Valley in 1851. He was the first County Judge of what is now Douglas County. He also served, at one time, as Deputy United States Prosecuting At- torney.
The sixth state Governor, William Wallace Thayer (September
11, 1878, to September 13, 1882), was admitted to the bar at Roches- ter, N. Y., in March, 1851. He was elected District Attorney of the Third Judicial District of Idaho Territory in 1866. He was on the Supreme Court bench from 1884 to 1890, and for two years of his term was Chief Justice.
Sylvester Pennoyer was the eighth state Governor (January 12, 1887, to January 14, 1895). He graduated from the law department of Harvard in 1854. He was an able man and extremely odd in his manners. He cared but little for the "proprieties." At one time, when President Cleveland tried to counsel him as to the manner in which to deal with a railroad strike, Pennoyer advised him to "mind his own business."
18 HISTORICAL
William Paine Lord, ninth state Governor (January 16, 1895, to January, 1899), was admitted to the bar in the Supreme Court of New York in 1866. He was elected City Attorney of Salem in 1868.
George E. Chamberlain, eleventh state Governor, is a graduate of the Washington and Lee University of Virginia (July, 1876) with the degrees of A. B. and B. L. In 1884 he was District Attorney for the Third Judicial District. He was the first Attorney General of Ore- gon under the act creating that office (1891), taking office May 21, that same year. He was also elected for the succeeding terms, and was chosen as District Attorney for Multnomah County in 1900. George E. Chamberlain's first term as Governor of Oregon was from January 14, 1903, to January, 1907; re-elected January 15, 1907, to serve until January, 1911. He was elected as a United States Sen- ator from Oregon January 20, 1909, for the period of six years, be- ginning March 4, 1909, and ending March 3, 1915. He resigned as Governor to accept the United States Senatorship February 27, 1909, and was succeeded as Governor by Frank W. Benson, Secretary of State, March 1, 1909, the latter now holding both offices (1910).
On the death of Senator John H. Mitchell, in December, 1905, Governor Chamberlain appointed Hon. John M. Gearin, of Portland, as United States Senator from Oregon, to fill out Senator Mitchell's unexpired term. His term of office extended from January, 1906, to March 3, 1907, when he was succeeded by Senator Jonathan Bourne.
Jonathan Bourne, United States Senator from Oregon, was elected to serve for six years, his term ending March 3, 1913. He was ad- mitted to the bar March 9, 1881.
Charles W. Fulton was elected United States Senator from Ore- gon for the term of six years, his term ending March 3, 1909. He was admitted to the bar January 4, 1877.
Frederick W. Mulkey, Oregon's "short term Senator," was elected to the United States Senate, February 23, 1907, his term expiring March 3, 1907. He was admitted to the bar January 2, 1898.
William R. Ellis was elected Congressman from the Second Con- gressional District as the First Representative, serving from March 4, 1893, to March 3, 1899; re-elected March 4, 1907, to March 3, 1909; re-elected March 4, 1909, to March 3, 1911. He was admitted to the bar June 11, 1885.
Thomas H. Tongue was elected Congressman from the First Con- gressional District in June, 1896, serving from March 4, 1897, to March 3, 1899; re-elected March 4, 1899, to March 3, 1901; re-elected March 4, 1901, to March 3, 1904. He died in office, and was suc- ceeded by Binger Hermann, elected at a special election held June 1, 1903. Mr. Tongue was admitted to the bar in 1870, having stud- ied law with W. D. Hare.
HISTORICAL 19
Willis C. Hawley, elected to Congress from the First Congres- sional District (March 4, 1907, to March 3, 1909; re-elected, March 4, 1909, to March 3, 1911). He was admitted to the bar October 2, 1894.
Dr. Frederick Prigg, of Oregon City, Oregon's third Secretary of State, was at one time Circuit Judge of Clackamas County.
General Edward Hamilton, second Secretary of Oregon Territory, was educated for the bar.
Benjamin F. Harding, fourth Secretary of Oregon Territory, was a lawyer by profession.
George Wickliff McBride, of St. Helens, was the first native-born Oregonian to fill the office of Secretary of State, being the fifth to occupy that office. He served two terms, from 1887 to 1895. He studied law with J. C. Moreland (now Clerk of the Supreme Court), at Portland, but never actively followed the practice of the pro- fession.
Frank W. Benson, present Secretary of State and also Governor, succeeding Governor Chamberlain, was elected for the term begin- ning January 14, 1907, and ending January 9, 1911. He was admitted to the bar June 2, 1898.
Phil Metschan, of Portland, the seventh State Treasurer (1890 to 1899), was County Judge of Grant County, from 1882 to 1886, inclusive.
Samuel R. Thurston, first Oregon delegate to Congress (June 6, 1849, to March 3, 1851), was admitted to the bar in New Brunswick.
Lansing Stout, second Representative at Large from Oregon (March 4, 1859, to March 3, 1861) begun practice as a lawyer in Oregon in 1857, and was elected Judge in Multnomah County in 1857.
Colonel George K. Shiel was the third Representative at Large from Oregon to Congress (March 4, 1861, to March 3, 1863). He came to the state in 1854 and practiced his profession at Salem from 1854 to 1861.
John Rogers McBride was the fourth Representative at Large from Oregon (March 4, 1863, to March 3, 1865). He afterwards moved to Spokane to follow his profession of law.
Rufus Mallory was the sixth Representative at Large to Congress from Oregon. He was admitted to the bar in 1860.
Joseph G. Wilson died before taking his seat in Congress as ninth Representative at Large, to which he was elected, March 4, 1873. He was admitted to the bar in Ohio.
La Fayette Lane was the twelfth Representative at Large from Oregon (October 25, 1875, to March 3, 1877). He practiced law in Oregon.
20 HISTORICAL
Richard Williams was the thirteenth Representative at Large from this state (March 4, 1877, to March 3, 1879). He studied law at Corvallis. He was a one-time partner of Judge Mallory and after- wards was a partner with W. Lair Hill and W. W. Thayer.
Melvin Clarke George was Oregon's fifteenth Representative at Large (March 4, 1881, to March 3, 1885). He is an ex-Judge of Multnomah County and is at present writing engaged in the practice of his profession in Portland.
Binger Hermann was the state's sixteenth Representative at Large and the first Representative from the First Congressional District after its creation. He was admitted to the Supreme Court of Oregon in 1886.
Hon. Asahel Bush, Territorial Printer from 1S51 to 1864, was admitted to the Massachusetts bar in May, 1850.
Hon. Eugene Semple, State Printer from 1872 to 1874, was a graduate of the Cincinnati Law School, in 1863. He practiced law in Portland from 1863 to 1869.
Among the United States Senators from Oregon who were mem- bers of the profession of law, the following may be mentioned:
Colonel Edward D. Baker (March 4, 1861, to October 21, 1864), "first studied for the ministry, but soon turned his attention to law, becoming famous as an advocate in Illinois."
Benjamin Stark (October 21, 1861, to September 11, 1862), was admitted to the bar in 1851.
George H. Williams (March 4, 1865, to March 3, 1871), was ad- mitted to practice in 1844, in Onondaga County, N. Y.
John H. Mitchell (March 4, 1873, to March 3. 1879; March 4, 1885, to March 3, 1891; March 4, 1891, to March 3, 1897). He was admitted to the bar in Pennsylvania.
James Harvey Slater (March 4, 1879, to March 3, 1885), was ad- mitted to the bar in 1854. He served as Clerk of the United States District Court in 1853.
Joseph N. Dolph (March 4, 1883, to March 3, 1889; March 4, 1889, to March 3, 1895), was admitted to the bar in New York in 1861.
Joseph Simon (March 4, 1897, to March 3, 1903). was admitted to practice in 1872.
The Legislature created the office of Attorney-General in 1891. Governor Pennoyer appointed as first incumbent to the office Hon. George E. Chamberlain. In June, 1892, he was elected to the office for a term of two years.
Cicero M. Idleman was Attorney-General from 1895 to 1899. He was admitted to the bar in Ohio in 1883.
HISTORICAL 21
D. R. Blackburn was Attorney-General from 1899 to 1903.
A. M. Crawford was Attorney-General from 1903 to 1907. In 1907 he was re-elected, his term of office to expire in 1911.
JUDGES OF THE SUPREME COURT.
The record shows that "February 18, 1841, J. L. Babcock was unanimously chosen Supreme Judge of Oregon with probate pow- ers, and was instructed to act in accordance with the Code and laws of the State of New York until a Code should be adopted in Ore- gon." He was probably the first man to occupy this position.
"For the purpose of taking steps to organize a civil community and provide laws, Mr. W. E. Wilson was chosen Supreme Judge with probate powers," at Champooick (Champoeg), May 2, 1843.
In the Code and Primary Constitution submitted by the Legis- lative Committee July 5, 1843, this provision appears: "That judi- cial powers shall be vested in a Supreme Court consisting of a Su- preme Judge and two Justices of the Peace. The jurisdiction of the Supreme Court shall be both appellate and original."
August 9, 1845, Nathaniel Ford, of Yamhill County, was elected "a Supreme Judge of Oregon." But he declined to serve, and the Legislature elected Hon. P. H. Burnett Supreme Judge for four years.
February 11, 1847, Hon. J. Quinn Thornton took the oath of office as Supreme Judge of Oregon.
November 13, 1847, Hon. Columbus Lancaster took the oath as Supreme Judge.
February 13, 1849, Hon. A. L. Lovejoy was elected to the office. The early records are incomplete, but they show that Judges Wil- liam P. Bryant and Thomas Nelson, who had been appointed Su- preme Court Judges and who reached Oregon in 1849, were suc- cessors to Judge Lovejoy.
The first Chief Justice for the Territory of Oregon was Judge William P. Bryant (1849-1850).
The second Chief Justice was Judge Thomas Nelson (1850-1853). His Associate Justices were Orville C. Pratt and William Strong.
The third Chief Justice was Judge George H. Williams (1853- 1859).
Judge Aaron E. Wait was the first Chief Justice after Oregon became a state (1859-1862).
Judge Reuben P. Boise was Chief Justice from 1862 to 1864 and from 1868 to 1870.
Judge Paige Prim was Chief Justice from 1859 to 1880, having
22 HISTORICAL
been elected three times to this distinguished place, and was the sixth, ninth and twelfth to fill the position.
Judge Erasmus D. Shattuck was Chief Justice from 1866 to 1868.
William W. Upton was the tenth Chief Justice (1872-1874), and was Associate Justice from 1868 to 1872.
Judge B. F. Bonham was Chief Justice from 1874 to 1876. Judge James K. Kelly was Chief Justice from 1878 to 1880.
Judge William Paine Lord was Chief Justice at these periods: 1880-1882, 1886-1888, 1892-1894.
Judge John Breckenridge Waldo was the sixteenth Chief Justice of the Supreme Court, 1884-1886; Associate Justice, 1880-1884.
Judge William Wallace Thayer was Chief Justice from 1885 to 1890.
Judge R. S. Strahan was Chief Justice, 1890-1892. Judge Robert S. Bean was Chief Justice, 1892-1896.
Frank A. Moore was Chief Justice, 1896-1898; 1898-1902, Asso- ciate Justice; 1902-1904, Chief Justice; 1904-1908, Associate Justice; elected 1908 as Chief Justice, his term expiring in 1911.
Judge Charles E. Wolverton was Chief Justice, 1898-1900. He was advanced to the United States District bench after the death of Judge Bellinger, a position which he still creditably fills.
"The constitution of Oregon, as adopted by the people in 1858 and ratified by Congress in 1859, provided that until the population should reach one hundred thousand, Circuit Judges for the several judicial districts should be elected to serve in the dual capacity of Circuit and Supreme Judges. It provided that in addition to their duties as Circuit Judges they should meet annually, or oftener if necessary, at the state capitol and hold Supreme Court, the Judge whose decision was being reviewed not sitting as a Supreme Judge in each instance. On account of this provision it happens that dur- ing the early history of Oregon there were more judges upon the Supreme bench than during the more recent years. In the year 1878 an act, as contemplated in the constitution, providing for the election of Supreme and Circuit Judges in distinct classes, was duly passed, and from that date to the present time the Supreme Court has con- sisted of three justices, duly elected by the people and serving in that capacity only, the Circuit and Supreme Courts being separate and distinct. The constitution designated the senior Judge, or the one whose term is next to expire, as the Chief Justice at any par- ticular period of time; thus, the office of Chief Justice rotates at any biennial election, so that in the case of a Justice being re-elected he serves in the capacity of Associate Justice for four years and in
HISTORICAL 23
the capacity of Chief Justice two years, the terms for which each Supreme Judge is elected being six years."
In 1907 the Oregon Legislature passed an act authorizing the appointment by the Governor of two Commissioners, whose duties were to assist the Supreme Court in the discharge of its work. Governor Chamberlain appointed Will R. King and W. T. Slater as such Commissioners. In 1909 the Legislature passed another act, authorizing the increase of Justices of the Supreme Court from three to five. Under this act, Governor Chamberlain appointed the above-named Commissioners to these positions, which they occupy at this time (1910).
In 1889 the Legislature of Oregon provided that the Supreme Court should be held at Pendleton on the first Monday in May and on the first Monday in November of each year. This was to provide facilities for hearings for all counties east of the Cascade Mountains, excepting the counties of Lake and Klamath. It is provided, also, that except from Crook, Wasco and Hood River counties all tran- scripts must be filed either at Pendleton or at Salem, the capital city, at the term next ensuing.
It is proper to say something of the Supreme Court Reports of Oregon in this connection. The principal decisions of Volumes I, II and III were reported by Joseph G. Wilson, who served part of the time as Judge of the Supreme Court and part of the time as Clerk, from 1853 to 1870. Volumes IV, V, VI, VII and VIII were reported by the late Judge Charles B. Bellinger, when Clerk of the Supreme Court, 1870 to 1880. Volumes IX, X, and XI were reported by T. B. Odeneal, 1880-1884. J. A. Stratton, Clerk from 1884 to 1887, re- ported Volumes XII, XIII and XIV. W. H. Holmes reported Volumes XV, XVI and XVII, 1887-1889. Under the Act of 1889, Chief Justice W. W. Thayer and Chief Justice R. S. Strahan reported, respectively, Volumes XVIII, XIX (1889-1890). The Act of 1891 authorized an official Supreme Court Reporter. George H. Burnett was the first Reporter elected to the office under this act. He reported Volumes XX, XXI and XXII (1890-1892). Robert G. Morrow, at this time (1910) on the Circuit bench of Multnomah County, was chosen Re- porter in 1892. He reported Volumes XXIII to XLIX, inclusive. He was succeeded by Frank A. Turner, who reported Volumes L to LIII, inclusive, and who still occupies the position (1910).
FIRST WRITTEN RECORD OF THE SUPREME COURT.
A copy of the first written record of the Supreme Court of the Territory of Oregon, copied from the records, through the courtesy of Judge Moreland, Clerk of the Supreme Court, is a matter of quaint interest. It is herewith presented:
24 HISTORICAL
"COURT RECORDS, OREGON TERRITORY.
"January 15th, A. D. 1844.
"Ahi Smith obtained a writ of replevin for a yoke of oxen de- tained by Nineveh Ford.
"Filed affidavit, and writ issued to the Sheriff returnable at the next term of court.
"G. W. LE BRETON, Clerk of Court."
"Second Term of Supreme Court of Oregon Territory. Held at Tualita Plaine— third Tuesday in April, A. D. 1844.
"(O. Russell presiding, assisted by R. More, Justice of the Peace.)
"Court opened at 10 o'clock A. M. First case called. Smith versus Ford.
"Writ of replevin issued in behalf of Ahi Smith on the 15th of January, A. D. 1844, commanding the Sheriff to replevy one yoke of oxen unlawfully detained by Nineveh Ford, and summoning the said Ford to appear and abide the judgment of the Court.
"The defendant, plead for a nonsuit on the informality of the bond given by the plaintiff. The Court having decided the bond to be legally constituted, the defendant then applied for a continuance of the cause, on account of absence of testimony. The oath being administered the defendant stated the facts he wished to prove by those witnesses, when the Court adjourned until 2 o'clock P. M."
On the trial the jury found a verdict for the plaintiff.
OREGON WOMEN LAWYERS.
The Supreme Court records show that quite a number of women have, at one time or another, passed the examinations required of all applicants, and have been admitted to the bar, although the names of one or two herewith given were admitted on their certificates from other states. The list follows:
Mary A. Leonard, admitted in 1886.
Manche Irene Langley, admitted October 12, 1909.
Rachel L. Ray, admitted May 6, 1902. Justice Moore at the time paid her the high compliment of saying that after an experience of ten years upon the bench, he was free to say that she passed the best examination of any student that had ever appeared before him.
Wilda Buckman, admitted June 10, 1909.
Elizabeth Eaglesfield, admitted June 19, 1902.
Lida M. O'Bryon, admitted May 15, 1907.
Nina E. Wood, admitted October 7, 1896.
Narcissa Conn, admitted June 7, 1897.
Gabrielle Clark, admitted June 6, 1898.
Anna M. Carson, admitted in 1899.
Olive S. England (now Mrs. Enright), admitted in 1898.
HISTORICAL 25
Delia B. Crigler, admitted June 17, 1907.
Mrs. A. T. Kelliher is also a member of the bar. There may be one or two more.
THE OREGON CONSTITUTIONAL CONVENTION IN 1857.
Sentiment became so strong for statehood for Oregon at the end of the Yakima Indian War of 1855-56, that the voters of the territory elected delegates in June, 1857, to meet at Salem, August 17, the same year, to formulate a constitution. Prior to this time, General Lane, the Oregon delegate to the Congress of the United States, had framed a bill to the end of statehood for the territory, but it failed of passage, and effort to form a constitution was there- fore entirely due to the initiative of the territory itself. Sixty dele- gates attended the convention, of which Matthew P. Deady was made president and Chester N. Terry secretary. Among the well- known names at that convention in addition to Matthew P. Deady, who was at the time an Associate Justice of the Supreme Court of the Territory of Oregon, were the late George H. Williams, of revered memory, then Chief Justice; Cyrus Olney, Associate Justice, and R. P. Boise, who succeeded the latter on the Supreme Bench.
The only contest for a seat was that between F. G. Lockhart and P. B. Marple, of Coos County. The latter won out. One authority says that "Marple was nominally a lawyer, and he succeeded in mak- ing himself so much disliked by his tendency to indulge in discus- sion . . . that there was general regret that he had been suc- cessful in his contest."
Upon the several committees eighteen were lawyers. The judi- ciary committee comprised Hon. George H. Williams, Chief Justice, chairman; Cyrus Olney, Associate Justice; R. P. Boise, Associate Justice; Hon. John R. McBride, a well-known attorney, was attached to the executive committee.
In his recollections of that convention, John R. McBride very frankly says: "Truth, however, justifies the statement that the law- yers monopolized most of the time and the farmers the least." He pays a deserved tribute to Matthew P. Deady. He states that Judge Deady was then "about thirty-five years of age, was a man large in stature, of impressive manner and bearing, smooth in speech, cour- teous and affable in intercourse, though he had dignity and firmness as a presiding officer." Chancing to make several errors in his parliamentary rulings, when these were shown, he admitted his mis- takes, "and correcting his own errors with a cordiality and frankness which did him great credit with the convention."
Further Mr. McBride says of him: "He was a great admirer of rusticity. Although his tendencies toward an aristocratic life were
26 HISTORICAL
strong, he was an admirer of simplicity in home life." He was an ardent Unionist at the time of the Rebellion, in 1861.
The estimate of Judge Williams of the character of Judge Deady is worthy of insertion here. Of his associate on the Supreme bench he said:
"Judge Deady had by nature a judicial mind. His inclination and practice were to drive through technicalities to the vital points of a case. When he made up his mind that a certain result in a case was right, he was accustomed to remove with a strong hand all obstacles to the attainment of that end. ... 1 know of no higher praise that I can bestow upon a judge than to say of him that he adminis- tered the law without fear, favor or affection. No hand has been so strongly and deeply impressed upon the legislative and judicial history of Oregon as that of Judge Deady."
In the opinion of Judge Williams, "Judge Olney was a modest, retiring and rather eccentric, but no ordinary man." Of him he said, further, "I have never met but one who, in my judgment, could dovetail the facts and circumstances of a case together with more completeness and convincing effect that Cyrus Olney; but notwith- standing this, my opinion is that his qualifications for a judge were not equal to those possessed by Judge Deady."
The judiciary discussions were led principally by George H. Wil- liams and Delazon Smith, who was an able lawyer, afterwards a United States Senator.
George H. Williams, Oregon's "Grand Old Man," died at his home in Portland, on the night of April 3-4, 1910. It is difficult to resist the desire to eulogize the distinguished statesman, who has so re- cently passed into the Great Beyond. Suffice it to say that he re- ceived his appointment as Chief Justice of the Oregon territory at the hands of President Pierce. He first settled at Salem, and at the expiration of Pierce's administration, was reappointed Chief Justice by President Buchanan, but retired to practice law at Portland, one year later. From his great mind was evolved the Fourteenth Amend- ment to the Constitution of the United States. His record as a member of the Commission to frame a treaty for the settlement of the Alabama Claims, his record as Attorney-General in the Cabinet of President Grant, and many other acts of his life stamp him as one of the nation's great men. He was of simple tastes. His life was gentle; he was credulous by nature, and no doubt his great, kind heart was often imposed upon. He was in his eighty-eighth year at the time of his death.
Reuben P. Boise, one of the members of the judiciary committee of the convention, served his district judicially almost continuously
HISTORICAL 27
during the active years of his life. The record of his life is open and free to be read by all.
In the archives of the State Historical Society there appears this reference to Delazon Smith and other members of this historical con- vention. These are here briefly quoted, as follows:
"There were a number of the members of the convention who became prominent in the state. Delazon Smith was one of the first United States Senators. Grover eventually became a Senator, and Kelly served a term in that body. Deady was appointed United States District Judge and died after thirty years of service on the bench. Dryer was appointed United States Commissioner to the Hawaiian Islands and died subsequently in Portland. Williams be- came a United States Senator, and afterwards Attorney-General of the United States, and is now the Mayor of Portland (1906). Shat- tuck, of Washington County, served as a District and Supreme Judge for many years acceptably and ably, and many others who were prominent in the deliberations have done good service to the state in honorable positions."
In 1834 President Tyler appointed Delazon Smith as a Minister to Peru. While there, he was overcome by the wanderlust, and de- cided to explore the Andes region, after crossing the continent on horseback. It was then practically a terra incognita. For eleven months the State Department was not cognizant of his whereabouts, and the witty paragraphers of the newspapers spoke of him as the "lost Minister," and dubbed him "Delusion" Smith. He was a splen- did orator and his expression was logical. He could be ironical to a degree. It is related of him that on hearing John R. McBride de- nounce the Dred Scott decision of the United States Supreme Court, so unpopular with the Republicans of that period, Smith remarked with mirthful irony: "How those grave old judges at Washington will be humiliated when they hear that the young David of the bar of Yamhill County, Oregon, differs from their deliverance in the Dred Scott case. They will hide their old gray heads in shame, and we can only pity them." McBride admitted: "I felt myself crushed as though a lion had touched me a passing blow with his paw."
Smith was one of Oregon's greatest men is admitted. He served as a United States Senator only a few days. He went to Congress in 1859, and a few days after the election of Abraham Lincoln, "he died more from a broken heart than physical illness."
W. H. Farrar, another member of this convention, was well edu- cated and an able lawyer. He was born in New Hampshire. He was refined in manner, but there was a non-understandable element in his character. He resided at one time at Washington, D. C. He accepted an invitation to deliver the annual address at an anniversary
28 HISTORICAL
of the State of New Hampshire, in 1864. Before the date set, he dropped completely from view, though why, no one knew but him- self, and he never saw fit to explain. He served at one time as Mayor of Portland.
One of the wittiest members of that convention was "Hal" Reed, of Jackson County, then about 30 years old. He had but little to say at first, but was becoming wearied with the long-winded haran- gues. A motion was made to limit the debate. Delazon Smith re- ferred to the "dumb dogs who couldn't bark and didn't want to listen to those who could." This brought Reed to his feet with a witty and sarcastic retort that "silence is golden;" that he was there to forward the work in hand, and that the silent members could not be "wiped out with a wet rag." Subsequently Reed removed to Nevada, in the '60s, but returned to Portland in later years, where he died, in the practice of his profession.
The tribute paid by McBride to the framers of the Constitution of Oregon, is a worthy finale to this portion of the present sketch. "Their work," said he, "was indorsed by the people and has stood the test of criticism and time for over forty years. That it had defects when made was admitted by many, but on the whole it then sur- passed, and still surpasses, many constitutions more pretenious, even those of later date. It is brief in its language, affording less ground for debate or construction than most of such instruments, and has caused less difference of opinion for the courts than almost any or- ganic law with which I am acquainted."
The New York and Iowa statutes served as models for the Pro- visional Government of Oregon, and subsequent litigation followed these lines. The Oregon Constitution was framed by sixty delegates chosen by the people at the general election held the first Monday of June, 1857. On the second Monday in November, that same year, it was ratified by a majority vote of the electors of the territory, and the Act of Congress admitting Oregon into the Union was approved February 14, 1859, at which time the constitution went into effect.
Article VII, Section 1, of the Constitution of Oregon, provides for a Supreme Court and a County Court, "which shall be courts of record, having general jurisdiction to be defined, limited and regu- lated by law in accordance with this constitution. Justices of the Peace may also be invested with limited judicial powers, and munici- pal courts may be created to administer the regulations of incorpor- ated towns and villages."
OREGON'S DONATION LAND LAW.
Some account, at least, of Oregon's "Donation Land Law," should be given in a work like the present. It is made up of several differ-
HISTORICAL 29
ent Acts of Congress. The Act of Congress, August 14, 1848, pro- vided:
"From and after the passage of this act all that part of the terri- tory of the United States which lies west of the summit of the Rocky Mountains, north of the forty-second degree of north lati- tude, known as the Territory of Oregon, shall be organized into and constitute a temporary government, by the name of the Territory of Oregon: Provided, that nothing in this act contained shall be con- strued to impair the rights of person or property now pertaining to the Indians in said territory, so long as such rights remain unextin- guished by treaty between the United States and such Indians, or to affect the authority of the Government of the United States, any regulation respecting such Indians, their lands, property or other rights, by treaty, law or otherwise, which it would have been compe- tent to the Government to make if this act had never passed: And provided, also, that the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the In- dian tribes in said territory, together with the improvement thereon, be confirmed and established in the several religious societies to which said missionary stations respectively belong."
Section 4, Act of Congress, September 2, 1850, provided, among other things, that "there shall be, and hereby is, granted to every white settler or occupant of public lands, American half-breed in- cluded, above the age of eighteen years, being a citizen of the United States, . . . who shall have resided upon and cultivated the same for four successive years, . . . the quantity of one-half section, or three hundred and twenty acres of land, if a single man, and if a married man, or, if he shall become married within one year from the first day of December, 1850, the quantity of one section, or six hundred and forty acres, one-half to himself and the other half to his wife, to be held by her in her own right," etc.
Grants were issued to all white citizens of the United States above twenty-one years of age emigrating to and settling in Oregon between December 1, 1850, and December 1, 1853. Claimants were required within twelve months after the surveys had been made, or if the surveys were made before the settlement, then within twelve months after such settlement was commenced. Upon the settler's death his rights descended to his heir and widow. Military posts or other land claimed for governmental purposes were not subject to donation rights; all mineral lands and lands reserved for salines, were reserved from such rights, as were, also, forts, magazines, ar- senals and dockyards.
The Act of Congress, February 14, 1853, provided for the commu- tation of donation claims. Act of July 17, 1854, gave to orphans
30 HISTORICAL
the right to claim quarter sections. It also provided that townsites were not to be included in donation claims.
The foregoing are the principal points covered by the Oregon Do- nation Land Law, which is universally conceded to have been a piece of wise and beneficent legislation.
CHARACTER SKETCHES OF SOME OF THE MEMBERS OF THE OREGON BENCH AND BAR.
After the admission of Oregon as a state, the first judges to be elected in 1858 to the bench of the Supreme Court were the follow- ing: Matthew P. Deady, Chief Justice; A. E. Wait, Riley E. Strat- ton, Reuben P. Boise, Associate Justices. Ere they entered upon their duties Deady was appointed by the President of the United States as District Judge for the District of Oregon. Governor White- aker appointed P. P. Prim to fill the vacancy thus occasioned; thus Judge Wait became the first Chief Justice of the Supreme Court.
Judge Wait was born in Massachusetts and came to Oregon in 1847. He was a lawyer of much ability, firm in his convictions and a conscientious and honest man. He resigned in the spring of 1860 to accept the nomination for Congress at the hands of the Brecken- ridge-Lane wing of the Democratic party, but failed to achieve his ambitions.
Judge Whiteaker appointed W. W. Page, a prominent Portland lawyer, to fill Judge Wait's place. At the following election Judge E. D. Shattuck was elected as successor to Judge Page.
Judge Stratton was born in Pennsylvania. He was educated for the ministry, but decided to enter the legal profession. He is de- scribed as having been a fine-appearing man, a ready writer and a fluent speaker. He settled at Roseburg in 1852. He became Prose- cuting Attorney for the First Judicial District and was afterwards elected to the Supreme bench. Judge Boise pays him this tribute: "He was a true man of the people always kind, genial, affable and just to his fellows; indeed, nature had written on his brow, 'a gen- tleman.' ' He died in December, 1865.
A. A. Skinner succeeded him on the Supreme bench under the appointment of Governor Woods. He came to Oregon in 1845. Un- der the Provisional Government he was a Circuit Judge and a man of influence. He was also prominent under the Territorial Govern- ment, acting as Prosecuting Attorney, Indian Agent and afterwards becoming a delegate for the Whig party as delegate to Congress against General Joseph Lane. In 1866 he was succeeded by John Kelsay, a pioneer of 1852, who came from Missouri. He had a wide
HISTORICAL 31
practice over the Second and Third Judicial Districts and in the Supreme Court. His convictions were strong in politics and religion and he was slow to accept variations from established beliefs. One day, in the old court room, at Salem, while looking up some legal authorities, he overheard a discussion upon the then newly-announced Darwinian theory. Since it appeared to run counter to his religious leanings, he remarked: "Boys, there ain't anything in this monkey theory; for if it were true, there would be an occasional breeding back, and a baby with a tail every once in awhile."
Judge Kelsay's briefs were often written on separate bits of paper which he carried in his hat, but he could marshal his authori- ties well before a jury. Judge Boise declares him to have been "an honorable, industrious, energetic man, who stood bravely for the right as he saw it, and never faltered in the discharge of his duties in public or private life."
A. J. Thayer was born in New York and came to Oregon in 1852, settling at Corvallis in the practice of law. He succeeded Judge Kelsay. He was a practical farmer as well as lawyer. In appear- ance he was short and stout, and is said to have worn buckskin breeches when engaged in farm work. When he became a candidate for Judge in the Second District, William Gird, a former associate in business matters but at that time "at outs" with Judge Thayer, tried to defeat him by the publication in a Corvallis newspaper of a warning against him, declaring him to be dishonest and crooked, and as always trying to cover up his trail, "and that to do this he wore buckskin breeches so low in the seat as to rub out his tracks." Judge Boise says of him: "I knew Judge Thayer intimately from the time he came to the state, was frequently associated with him in the management of suits, and served with him on the bench of the Supreme Court, and always found him upright and honorable — a good lawyer, ever true to his clients and friends." He was one of the founders and most staunch friends of the Oregon Agricultural College.
Owing to the growth in population east of the Cascades, the crea- tion of a new judicial district became necessary in 1862. Governor Gibbs appointed Joseph G. Wilson as Judge over the new district, which brought the membership of the Supreme Court up to five. Judge Wilson was born in New Hampshire, but was educated in Ohio. He was a graduate of Marietta College and also of the Cin- cinnati Law School. He settled in legal practice at Salem in 1852. He creditably served as Clerk of the Supreme Court both under the Territorial Government and after Oregon became a state, most of the time till he ascended to the Supreme bench. The first three vol- umes of the Oregon Supreme Court Reports were compiled by him.
32 HISTORICAL
He had superior natural abilities and was a cultured man. He was, for several years, Prosecuting Attorney for the Third District, from which place he was appointed Judge of the Fifth District, then com- prising all of Eastern Oregon. He had great quickness of apprehen- sion and intimate knowledge. Though elected to Congress, he died suddenly in Ohio, without serving. One authority says: "He was a popular Circuit Judge. As a Judge of the Supreme Court, he ac- quitted himself with distinguished ability."
E. D. Shattuck was born in Vermont and came to Oregon about 1853. He served as a teacher at Oregon City for a time and after- wards as such at Pacific University, at Cottage Grove. He was a graduate of the University of Vermont and an accomplished scholar. He was a member of the Constitutional Convention from Washing- ton County. He served on the Supreme bench for a number of years, and also on the Circuit bench of Multnomah County at Port- land, nearly up to the time of his death. He was an accurate and painstaking lawyer and judge, and enjoyed the respect and confi- dence of the public.
P. P. Prim was born in Tennessee, and was one of the judges of the first Supreme Court of the state. He settled in Jackson County about 1851, at Jacksonville. He was a man of strict integrity, with a high sense of honor. He was an able lawyer and judge. He re- mained on the Supreme bench until the creation of a Supreme Court separate from the Circuit Court. Under appointment, he served as Supreme Court Judge for a time, but subsequently retired to pri- vate practice at Jacksonville. He was afterwards elected to the Legislature.
W. W. Upton was first appointed as Judge of the Fourth District by the Governor, and subsequently elected from that district. Prior to coming to Oregon, he was a member of the Sacramento bar. He is described as "a man of pleasing address and a lawyer of ability." At the end of his term he retired from the bench. Before his ap- pointment as Judge, he was a member of the Oregon Legislature for one term. He was an able political manager and debater. He after- wards received a Government appointment in the Treasury Depart- ment, at Washington, where he remained until his death.
B. Whitton, who succeeded Judge Wilson in the Fifth Judicial District under gubernatorial appointment to fill a vacancy, served from June to September, 1870, when Judge L. L. McArthur was elected from this district, but never sat upon the Supreme bench.
L. L. McArthur arrived in Oregon in 1864. He was born in Vir- ginia May 18. 1843. He is reputed to have been "a good scholar and. well-read in his profession, of prepossessing appearance and a pleasant gentleman who knew well the ways of refined society." As Judge of the Circuit and Supreme Courts he ably discharged his du-
HISTORICAL 33
ties until a Supreme Court was specially created. Then he was for a number of years under appointment Circuit Judge of the Fifth District. Subsequently he was appointed United States District At- torney. He died in Portland, May 10, 1897.
CREATION OF THE PRESENT SUPREME COURT.
The present Supreme Court was created and established as a separate tribunal from the Circuit Court in 1878, with three judges. These were appointed to their positions, and were: Chief Justice, James J. Kelly; Associate Justices, Reuben P. Boise and P. P. Prim.
Judge Kelly was a graduate of Princeton College and of the Carlisle Law School. He emigrated to California in 1849, but came to Oregon in 1851, selecting Oregon City as his home, where he rose to the front rank as a lawyer. In 1853 Judge Kelly, Judge Boise and D. R. Bigelow were appointed as commissioners to prepare a code of laws for the territory. The code was adopted by the Terri- torial Legislature in 1853. The practice then formulated and adopted has undergone but little change since. Judge Kelly's honorable ca- reer may thus be briefly epitomized: Served several terms in the Territorial Legislature; was a member of the Constitutional Con- vention; was a member of the State Senate; served six years as United States Senator from Oregon. He was especially helpful in forwarding the building of the locks at the Cascades of the Co- lumbia. He acquired a competence after his retirement from the bench, removing to Washington, D. C., where he died later, full of years and honor.
The judges elected to succeed Judges Kelly, Boise and Prim in the Supreme Court were William P. Lord, Edward B. Watson and John B. Waldo.
The decisions of the original Supreme Court were all written, and are included in the first eight volumes of the Oregon Supreme Court Reports.
It is a matter of interest to note that in the constitution adopted by the Constitutional Convention, slavery was prohibited, and negroes and mulattoes were excluded from the state. They were deprived of the right to bring or maintain suits at law. The negro exclusion clause still remains in the Oregon Constitution. An effort was made a few years ago to expunge this clause, but it failed. The amendments to the Constitution of the United States, however, nullify it.
It will be remembered that Oregon's Provisional Government was really begun in 1843. In 1844 the pioneers decreed that Oregon should be a free state. The late George H. Williams was fond of referring to the time when he was Chief Justice. One of the first cases to come before him was an application by a colored family in
34 HISTORICAL
Polk County to be liberated under habeas corpus proceedings from their Missouri owner, who had brought them here and held them as slaves. It was claimed that the Constitution of the United States protected slave property in the territories. With that splendid in- sight which was ever a remarkable element in Judge Williams' char- acter, he granted the colored family its freedom. He held "that the law made by the pioneers upon the subject was not inconsistent with the spirit of the constitution and was the law of the land."
April 1, 1893, Judge Williams delivered an address at Portland, in which he referred to the territorial days of Oregon. In speaking of his one-time associates upon the Supreme bench, Judges Deady and Olney, Judge Williams said:
"Our personal and official relations were kindly and cordial, though all of us were somewhat firm and unyielding in our opinions; and I now recall one instance, when we sat down at a table in my residence at Salem to consider a case, and continued the discussion, with no little animation, until we adjourned for breakfast in the broad daylight of the next morning."
Evidently the judges of that period were willing to labor long hours.
A picturesque and interesting character deserving of mention in this connection is Colonel James Willis Nesmith. He was born at New Brunswick, Me., in 1820. In 1843 he joined the Applegate party in the long trip across the plains to Oregon. Hawthorne's "History of Oregon" says of him:
"In the long hours of that toilsome ride over the prairies, several members of the train who belonged to the legal fraternity started a mock trial. Nesmith took part in the exercise and displayed such an amazing amount of genius in his interpretation of justice that he was advised to join the legal profession. Arriving at Oregon City he put his talents to a practical test, and two years later served as a Judge under the Provisional Government." He died in 1880.
Colonel Nesmith was Judge under the Provisional Government from 1845 to 1846; member of the Provisional Legislature, 1845; United States Marshal, 1855-56; Superintendent of Indian Affairs, 1856-59; United States Senator, 1861-67; member of Congress, 1873- 1875. Hawthorne thus eulogizes him: "Honest, open-hearted and courageous, no danger or unexpected event could shake his firmness or disturb his presence of mind." He was of vigorous mental power, humane disposition and was liberal in his opinions.
Among the first emigrants to Oregon was what was known as the "Peoria party," which left Illinois about May 1, 1839. There were nineteen in the party, and of these only one was a lawyer, one T. J. Farnham, born in Vermont, who was then about thirty-five years
HISTORICAL 35
of age. Farnham acted as leader, and he called his followers the "Oregon dragoons." They carried a flag, presented by Mrs. Farn- ham, bearing the legend, "Oregon or the Grave." Before starving out, Farnham said their intention was to raise the American flag, take possession of the country in the name of the United States and to drive out the Hudson's Bay Company.
It is an anomalous fact, that the first Judge of the Supreme Court under the Provisional Government was a physician — a Dr. Babcock. The late Judge Boise says of him: "He was not a lawyer; but there is no record tending to show that any want of technical learning led him to err in the discharge of his judicial duties."
At the time of the arrival of Judge Boise in Oregon, in November, 1850, he found J. Quinn Thornton residing at Oregon City, in the capacity of legal adviser to Dr. John McLoughlin. He was the only Judge of the Provisional Government with whom Judge Boise had a personal acquaintance. In the spring of 1851 he met him at a term of court held at Hillsboro, where he and Judge A. E. Wait were op- posing counsel in an action for divorce. We quote Judge Boise's own words:
"He first complimented Mr. Wait, his antagonist, describing him as a noble Roman clad in complete intellectual armor, and then spoke of his own preparation to meet a knight of the green bag so worthy of his steel, and then proceeded at great length to expound the law. . . . When the speeches of the learned counsel had been concluded, being much longer than I had been used to hearing in the courts of Massachusetts, I became impressed with the fact that the arguments of lawyers lengthened as the distance from the seats of legal learning increased.
"The first legal document that I saw coming from his pen was a long opinion elucidating the Oregon Donation Land Law, in which he made it appear that a settler might hold his land claim without living on it; that is, he might live in one place and be in another. This was accepted as good law by those who wished to live in town and hold a land claim in the country. But this ingenious theory was soon upset when the United States Surveyor General held that actual settlement was necessary and that a man resided where he lived."
It is of importance to note, in this connection, that Senator Lewis F. Linn, of Missouri, always friendly to Oregon's best interests, was the originator of the Oregon Donation Land Law. The present County of Linn was named in his honor.
It is related that at one time Judge Thornton was trying a case before a Justice of the Peace in Polk County. Opposed to him was a young Dallas lawyer named A. B. P. Wood, whose pet law book was "Bacon's Abridgement," from which he so often quoted that he
36 HISTORICAL
earned for himself the sobriquet of "Bacon's Abridgement" by Ne- smith. As usual, on this occasion, he cited the rulings of law from his favorite volume. Judge Thornton asked to see the book, and after examining the title page, quietly awaited his turn to speak. He expressed surprise that Mr. Wood should introduce a British author- ity in an American law court. Showing the title page to the Justice he thus addressed the court: "This is English, not American law. This book, as it is plainly written here on the title page, was written in London, England, in the Inner Temple. It is the law of England, of the people who oppressed our fathers, and the law which they repudiated in the Declaration of Independence. Mr. Wood is trying to impose on the court." Wood's arguments to the contrary availed him nothing.
In the court at Hillsboro, the presiding judge in 1851 was William Strong. Judge Boise says that he "was a learned lawyer and an able Judge." At this term of court, the lawyers in attendance were Judges Thornton and Wait, A. Holbrook, W. W. Chapman and a lawyer named Brennon. Dr. Ralph Wilcox was clerk.
The first case of a public nature to come before the Supreme Court when O. C. Pratt, William Strong and Thomas Nelson sat on the bench was one involving the validity of the act of the Territorial Legislature, authorizing the removal of the capital from Oregon City to Salem. The opinion was written by Judge Strong, who de- clared the act invalid, in that it conflicted with the Act of Congress organizing Oregon as a territory. A striking phrase in the opinion was "that the law was dead without mourners, could be buried with- out offence." Judge Pratt filed a dissenting opinion, which was af- terwards affirmed by a majority of the Legislature in session at Salem. The minority gathered at Oregon City. The Salem contin- gent changed the judicial districts, jurisdiction being given Judge Pratt over all the territory south of the Columbia River excepting Clackamas County.
In 1848, the Act of Congress authorizing the organization of the Territory of Oregon, it will be remembered the first judges of the Supreme Court were William P. Bryant, Chief Justice, and Peter G. Burnett and Orville C. Pratt, Associate Justices. Burnett left for the California gold mines and Bryant resigned. Thomas Nelson succeeded Bryant and William Strong succeeded Burnett. Strong, Burnett and Pratt constituted the Supreme Court in 1850, which was the first to transact any business of importance. The first term was held at Oregon City, in December, 1851.
One of the attorneys in attendance was Alexander Campbell, a partner of Judge Boise, then recently from Canada, where he stood high in his profession and soon became known in Portland as well
HISTORICAL ?7
for his ability. Subsequently he moved to San Francisco, where he became a partner of Judge Pratt, and was thereafter made Judge of the Twelfth Judicial District of California.
The first term of the Supreme Court which Judge Boise at- tended vas held at Salem, in 1852. Judges Nelson and Strong occu- pied the bench, Judge Pratt not being in the territory. "From 1853 until 1858," says Judge Boise, "Judge Williams presided in our courts in the district where I resided and was an able and popular judge."
In those early days court accommodations for lawyers were not always of the best nor the most convenient. "I remember," said Judge Boise, "that in the summer of 1854 the court at Eugene was held in the open air under a large oak tree, with a table and chair for the Judge and some chairs and rude benches for the lawyers and other attendants, and when the court business got slack we adjourned to the race track, which was near by, and at one time had recess to listen to a Democratic speech by Hon. Delazon Smith, who was then a coming figure in the politics of Oregon."
Coming down to a later date, one confronts the late Judge John F. Caples, who passed away in recent years, loved and respected. It is extremely interesting to hear him in his address which he de- livered at Portland in 1903 before the Oregon Bar Association, give his "Reminiscences of the Bench and Bar of Earlier Days." He spoke of the decade between 1865 and 1875. Said he:
"My first active work in the Supreme Court of Oregon was in 1868, when I first became acquainted with that body. I recollect how formidable it looked to me, but at the same time how kindly every one of them acted. I have often thought in particular of grand old Reuben P. Boise, a man of years and of experience, and a man in whom the people have had confidence, and passing on through the usual years of life, stands now a monument of pride to the profession of law and to the profession of gentlemen on the bench of the State of Oregon."
Judge Caples paid kindly tribute to P. P. Prim — "a lawyer who had grown old in years of practice, and a man whose temper never deserted him, a man whose legal ability was much beyond the ordi- nary, a man who has passed to a better land with all the honors of a long and useful life— such a man was P. P. Prim."
Other lawyers and judges of that period recalled by Judge Caples were Judge Burnett, of Corvallis; George N. Dorris, of Eugene; James B. Fay, Tilmon Ford, J. C. Fullerton, N. H. Gates, of The Dalles; Ben Hayden; Hire Jackson, of Columbia County; La Fayette Lane; A. J. Lawrence, James H. Slater, Judge Thayer, James F. Wat- son, Judge Strahan, "a man who secured high honors;" Judge Mo- sher, of Roseburg, "a man of a great deal of ability, particularly as
38 HIS T O R I C A L
a writer;" Judge Rufus Mallory, of Portland; Richard Williams, of Portland; Judge Wolverton, then of the Supreme Court, later ele- vated to the bench of the United States District Court; George L. Wood, who "could sway the multitude" with his oratory; W. W. Chapman, "a man who went to court with few cases and always on the warpath;" Judge Cronin, "a man of large ability;" Matthew P. Deady, whose "opinions are more considered today than they were when they were delivered;" J. N. Dolph, "a strong man ... an honor to the State of Oregon;" Judge M. C. George; A. C. Gibbs, "a man of large heart," afterwards Governor of Oregon and then United States District Attorney, filling "those positions acceptably to the authorities, and with honor to himself."
Other names that flashed through Judge Caples' memory were: La Fayette Grover, Judge Edward Hamilton and Judge Lair Hill; Emery Holbrook, "a good lawyer and a man of high standing;" Colonel James K. Kelly and Colonel Ben Hayden; David Logan, "who cut a very conspicuous figure in the earlier days of the bar of the State of Oregon;" Senator John H. Mitchell; Marion F. Mul- key, "who had many good qualities, who succeeded well in life and who had the honor to leave a son who worthily wears the mantle of his father" — ex-United States Senator Mulkey.
Another worthy group was W. W. Page, John H. Rand, Judge E. D. Shattuck, "who sat so long upon the bench in Multnomah Coun- ty;" Lansing Stout; Raleigh Stott; William Strong, "a man of great ability, a man of great industry, a man of great suavity;" Judge Trimble and John B. Waldo, John W. Whalley and Judge Marquam.
Of Judge Lord, Judge Caples gave this high commendation: "In every position Judge Lord has been called to fill, both as Judge of the Supreme Court and as a representative of the diplomatic corps of this country, he has filled the same with honor to himself and a credit to the state and nation he represents."
In his "Personal Recollections" of his "Six Years in the United States Senate," George H. Williams gave many interesting remi- niscences. His term covered the Reconstruction Period, when the rehabilitation of the Confederate States was under way. Oregon was then ( 1865) represented in the Senate by Judge Williams and James W. Nesmith.
A joint committee had been appointed— nine from the House of Representatives and six from the Senate— of which Judge Williams was one, "to inquire into the condition of the states which formed the so-called Confederate States, and report whether they or any of them are entitled to be represented in either house of Congress, and to report by bill or otherwise."
Judge Williams sat up an entire night in preparing the bill which
HISTORICAL 39
was subsequently passed, and which completely routed the plans of President Andrew Johnson. Strenuous efforts were made by the opposition to tack on amendments, which Judge Williams heroically fought, and to postpone action by all sorts of dilatory tactics. The "Grand Old Man" from Oregon was equal to the emergency. He made up his mind, as he so shrewdly said, that the "only way to defeat the enemies of the bill was to wear them out by night and day sessions." This was eventually accomplished, and the grim old warrior had the satisfaction of seeing that his bill, albeit an amend- ment was attached to it, pass.
In March, 1850, Judge Deady tried his first case in Oregon at a term of court held at Lafayette. The surroundings were primitive but, as he declared, "the dignity and order of the court so far as the same depended on the Judge, O. C. Pratt, would not suffer from a comparison with Westminster Hall."
It may not be generally known, but the truth is that Harvey W. Scott, editor of the Oregonian, who is one of the truly great editors of the United States, at one time turned his attention to the law. In 1864 he studied law in the office of E. D. Shattuck for a year but the call of journalism and events so shaping themselves, he took his pen, since then so trenchant, in hand, and the world was a gainer thereby.
Judge Arthur L. Frazer, Judge of the Multnomah Circuit Court, so recently laid aside the cares of his office, at the call of the Angel of Death, that it seems but yesterday that he was here. He suc- ceeded Judge Shattuck in Department No. 1, in 1898. A true en- comium is that uttered by one eulogist: "A just and upright man; faithful to every trust, and first Judge of the Juvenile Court." More than one wayward boy and girl learned to look with love and affection upon Judge Frazer. He was succeeded as Judge of the Juvenile Court by Judge Earl C. Bronaugh.
A contemporary of Judge Frazer upon the Multnomah Circuit Court bench was Alfred F. Sears, Jr., elected to the position in 1896 and re-elected by the united votes of both the Republican and Democratic parties in 1900. A sincere tribute is paid the late Judge Sears (who also has answered the great summons) in these words: His decisions "are absolutely as fair and impartial as possible from the facts in hand," and "he has won the warm regard and admira- tion of the bench and bar of Portland."
Another who has passed into the Great Beyond in recent years is Judge Charles B. Bellinger. From 1874 to 1878 he was Clerk of the Supreme Court. On the latter date Governor Thayer appointed him to a vacancy on the Circuit bench in the Fourth Judicial Dis- trict. In April, 1893, President Cleveland appointed him Judge of the United States District Court, to fill a vacancy caused by the
40 HISTORICAL
death of Judge Matthew P. Deady. He assumed his duties May 1, 1893. One of his contemporaries describes him as having been one of the most "forceful and interesting representatives of the legal fraternity of the Northwest," and one who was held in high esteem for the many admirable traits in his personality as well as for his erudition. He edited the Arena at Salem, the Salem Review and the Albany Democrat, the Portland News and the Evening Telegram, of Portland, at various times during his early manhood, before ally- ing himself permanently with the profession of law.
Another warrior of the forum was Judge John F. Caples, who paid the debt of nature in recent years. He was elected District Attorney in 1878 and his territory comprised the counties of Mult- nomah, Washington and Clackamas, Columbia and Clatsop. He filled the office with credit and honor tor the six succeeding years, "an honor hitherto accorded to no District Attorney in the state." From 1897 to 1901 he served as United States Consul at Valparaiso, Chili, when he resigned. He was a kindly, genial and talented man.
John W. Whalley was a bluff and hearty man, well liked. All will remember a little peculiarity of speech he had— "I say, I say"- with which he generally prefaced his remarks. He had a well-or- dered mind, and long held a place in the front rank of his profes- sion. He had great intuitive faculties, which made him a most en- tertaining and enjoyable companion.
The present able clerk of the Supreme Court of Oregon, Judge Julius C. Moreland, is, as one writer puts it, "a man of conspicuous legal talent." He was appointed County Judge of Multnomah County by Governor Moody in 1885, serving until 1886, after which he was elected to the office in 1890, serving until the end of 1894.
During the spring of 1867 La Fayette Lane, J. C. Moreland and W. B. Lastrell went to Vancouver, Washington, to pass their exami- nations for admission to the bar. Judge Lancaster was quite blunt in the expression of his opinion that it was hardly the proper thing lo do for young men from Oregon to seek admission to the Wash- ington bar. By implication he conveyed the idea that they were too inexperienced and young to have either legal acumen or knowledge. Lastrell had a most prodigious and remarkable memory, and could repeat, practically verbatim, page after page of Blackstone's Com- mentaries. Judge Lancaster, who was on the examining committee, tried to tie Lastrell up with knotty questions regarding estates of freehold, remainders, etc., but Lastrell was too well grounded to be in the least frustrated. To the Judge's intense amazement he went on, and on, quoting from the great English law writer with perfect accuracy. Having finished, he calmly inquired if his answers were not correct. Lancaster admitted that the young man knew his Black- stone better than he did, and expressed his surprise that Lastrell
HISTORICAL 41
could remember the law so well and so accurately. He was fair enough, too, to offer the young men an apology for his precon- ceived and unjust opinion, and said that it gave him extreme pleas- ure to be able to recommend the admission to the bar of the young aspirants before him.
Only a few years ago the name of Judge John J. Balleray was a power in Eastern Oregon. To use Lincoln's famous words, "With malice toward none, with charity for all" let us touch lightly upon the failings of Judge Balleray, and remember only the greater and better sides of his nature. He was unusually endowed, both by- nature and by education. He spoke French and German as easily and as fluently as he did the English language, and he admitted that he understood French grammar even better than he did English grammar. He had a powerful mind to grasp details and his memory was second to none. He was an accomplished Latin scholar and few men who have practiced at the bar were better read in the law. Either late in 1875 or early in 1876 Judge Balleray appeared in Portland, and began looking about for a suitable location to "hang out his shingle." He formed the acquaintance of J. C. Moreland, who took a liking to him, and offered him accommodations in his office until he should find a better place. While in Moreland's office, a French woman was charged with having had whiskey on her premises for sale, or which she did sell, "contrary to the statute in such cases made and provided." Judge Moreland was retained to defend her. When the day of trial came on, he was incapacitated, by reason of a bad cold, from going into court, and so he requested Balleray to conduct the case in his stead. Captain Lamson acted as interpreter for the court. Judge Deady was on the bench. Balle- ray's knowledge of French was of great importance. The question turned upon the conjugation of the verb "to have." Balleray asked the Court if he might be permitted to ask the French woman a question, which was granted. The point he made was whether she had whiskey on her premises, or whether she had had whiskey on her premises, he pointing out the difference the past perfect tense of the verb had in the matter. Judge Deady asked him if he under- stood French as well as that, and he said he did. He then pro- ceeded, to the astonishment of the Court and the witness, to rap- idly conjugate the verb from start to finish. Although the case it- self was almost hopeless up to this point, so far as the woman was concerned, by this neat little plan of Balleray's she was cleared. Judge Deady ever after highly esteemed Balleray. He was at one time a Circuit Judge at Pendleton, receiving his appointment from Governor Moody, and he left a good record as a jurist. There was a philanthropic side to his nature. Much of his success and popu- larity was due to the fact that he was what is known as "a good
42 HISTORICAL
mixer," being able to adjust himself readily to any sort of surround- ings.
JUDGE MORELAND'S CHARACTERIZATIONS.
Judge Julius C. Moreland's many years' residence in Oregon, coupled with his experience as a practicing lawyer, judge, newspaper man and Clerk of the Supreme Court, particularly well qualifies him to speak of his cotemporaries at the bar, both "the quick and the dead." He is a keen analyst. Here are a few of his characteri- zations:
Judge Burnett: "He took a prominent part in the formation of the state government of California and in the stirring times had there, and wherever he was placed acquitted himself well."
J. Quinn Thornton: "He was not a great lawyer, but seems to have done his work well in the early days."
Judge Lancaster: "He was a lawyer of the old school and imag- ined that all law found outside of Blackstone and Bacon's In- stitutes was hardly worth the knowing."
Judge Shattuck: "Was greatly beloved; a ripe scholar, a good lawyer, and an upright Judge."
Judge W. W. Upton: "He was a learned lawyer, prompt in his work, courteous to the bar, and was well regarded by the bar and his associates on the bench."
B. F. Bonham: "He filled many important places in public life, and there, as in private life, he exemplified the value of right living, and a high standard of citizenship."
Judge Wilson: "He was a good lawyer, of an active mind, con- genial, jovial, and his death was very greatly regretted."
John Kelsay: "He was somewhat uncouth of speech, full of life, loving a joke, with a marvelous fund of anecdotes; always well liked by his comrades."
A. J. Thayer: "He was thoroughly in earnest in whatever he undertook."
Judge McArthur: "He was a learned lawyer, wrote a graceful opinion; very popular in his community, and a useful man."
John Burnett: "A good lawyer and an earnest advocate."
Judge Watson: "An untiring worker; a zealous advocate, and made a good record as a Supreme Judge."
John B. Waldo: "An earnest student of nature, a philosopher as well as jurist; a statesman and a reformer."
Judge Reuben S. Strahan : "As a lawyer, Judge Strahan was much beyond the ordinary. He had a keen, quick, analytical mind and his written opinions on the bench commanded great attention."
HISTORICAL 43
Judge Bean: "He is a man learned in the law, of earnest appli- cation, great industry, steadfastness of purpose, quick in forming conclusions and strenuous in the defense of his opinions."
Judge Frank A. Moore: "Is a hard worker, a good lawyer, with pleasant personality, making friends with all those with whom he comes in contact."
Judge Thomas G. Hailey: "A good lawyer, and his work on the bench was satisfactory." (Judge Hailey died in recent years, just as a sphere of usefulness was opening up before him.)
Judge Robert Eakin: "A man of pleasing address, well equipped for his position."
Judge W. T. Slater: "A hard worker, a vigorous writer, and his opinions bear the stamp of a well cultivated, able lawyer."
Judge Will R. King: "Is a well equipped lawyer and writes a good opinion and gives promise of a most successful career."
On two different occasions, Judge Moreland thus expressed him- self: "All who have sat upon the Supreme Bench of the state prior to the establishment of the separate Supreme Court have passed on. They were an earnest, brave lot of men, who did their full share in building up the state and their memory will long be cherished by those who come after them."
On the second occasion he said: "Oregon has been fortunate in her judicial officers. They have been able, conscientious, upright men. But it is not disparagement to the judges who have gone be- fore to say that never in its history has the bench been filled with better, truer, abler or more upright men than those who now grace the position; and no court has ever given better satisfaction to the people." (1910).
Judge Moreland keenly enjoys telling this story of Chief Jus- tice Moore:
One time a stranger appeared at the state capitol, at Salem, and was desirous of being shown around. There being no one in sight at the time except Justice Moore, the stranger approached him, mak- ing his wishes known. Nothing loth, the jurist took the stranger and piloted him about, from basement to dome. The exploration having terminated, the newcomer asked the Chief Justice if he was employed around the building, not forgetting, of course, to express his thanks. The Judge admitted that he was. When the stranger asked him in what capacity he was employed, the jurist answered with becoming modesty: "I am Chief Justice of the Supreme Court." The man's astonishment can better be imagined than expressed.
At one time the late Judge Caples and Judge Moreland entered into a legal copartnership, and, of course, the survivor has many
44 HISTORICAL
anecdotes to tell of him, but one will suffice. Judge Moreland says that at one time, while trying a murder case, in which the murde occurred in a Chinese joss house, some question arose about the building, and a difference of opinion arose regarding some measure- ments of furniture, which was contradicted by Judge Caples' oppo- nent. To this Judge Caples calmly replied: "Probably you are correct and know more about it than I do, for I do not worship there." It was a tender tribute to a departed friend that Judge Moreland paid, when he said: "Judge Caples was a deeply religious man. True, he often stumbled, and sometimes fell, yet he always was up and constantly striving for the better way."
DIRECT PRIMARY NOMINATING ELECTIONS LAW.
At the general election held June 6, 1904, the voters of Oregon, on initiative petition, approved the act that was proposed by the people for a Direct Primary Nominating Elections Law. There were 56,285 votes cast in favor of this law, to 16,354 against, and the Governor, by proclamation, dated June 24, 1904, declared this pro- posed act to be the law governing elections thereafter. This act is unique, and has caused wide commendation all over the country, although there are still many who prefer the old form of law — where- by nominations were made in convention by delegates chosen by the voters for the purpose. It was Pope who declared:
"For forms of government, let fools contest, Whate'er is best adminster'd is best."
So with the law of elections. By the Direct Primary Law it is now possible to choose United States Senators by the direct vote of the people, in apparent contravention of the Constitution of the United States, which provides that Senators shall be chosen by the Legislature. Under the present law the people's choice, made mani- fest at the election, is made perforce of necessity, the Legislative choice, so it would appear that the abrogation of the Constitutional provision is more apparent than real. Whether the law is a good one or not, time alone will tell. It prevents deadlocks, which is some gain, anyway. A number of other states are endeavoring to adopt this same form of law, and it is said that "imitation is the sincerest form of flattery." If so, Oregon may yet be proud to have furnished such a law.
The law is formally described as follows;
"An Act to propose by initiative petition a law declaring certain rights of political parties and voluntary political organizations and of members and candidates thereof; declaring the purposes of this law and prescribing rules for the construction of its provisions; defining a political party subject to the provisions of this law;
HISTORICAL 45
providing for holding primary nominating elections preceding any election in this State (except special elections to fill vacancies, presi- dential elections, municipal elections in towns or cities having a population of less than two thousand inhabitants, and school elec- tions) for the purpose of nominating all the candidates by all political parties subject to this law for all public offices to be filled at the ensuing election, and for a Senator in Congress; fixing the times for holding and regulating the manner of conducting such primary nominating elections; prescribing the manner of choosing candidates for nomination by the several political parties subject to the provisions of this law, and for making nominations at said pri- mary nominating elections of the candidates of said political parties for election to public office at the enusing election, and forbidding the nomination of candidates for public office by such political parties in any other manner; providing for printing and distributing ballots at such primary nominating election by public officers at public expense; prescribing the qualifications of petitioners, electors and candidates for nomination at such primary nominating elections; prescribing forms and procedure at such primary nominating elec- tions and in the proceedings relating thereto, and statements to be made by candidates for nomination thereat; prescribing the duties of public officers in relation to and at such primary nominating elections; providing for the nomination by political parties subject to this law, of their candidates for election as delegates to any con- stitutional conventions that may be called in this State: providing for the election by the several political parties subject to this law, of their central committeemen, and defining their duties and powers as such committeemen; providing for the prevention and correction, under certain conditions, of errors, wrongs and violations of the provisions of this law, and remedies therefor; providing for the pre- vention of frauds and the punishment of crimes and misdemeanors committed at such primary nominating elections, or in the proceed- ings relating thereto; providing penalties and punishment for the violation of any of the provisions of this law; providing for contest- ing nominations made at such primary nominating elections; apply- ing to said primary nominating elections, so far as the same are not in conflict with the provisions of this law, and as the same may be modified by the provisions of this law," certain "sections of the General Laws of Oregon as the same are numbered in Bellinger and Cotton's Annotated Codes and Statutes of Oregon," etc.
The preamble to the act reads as follows:
"Under our form of government, political parties are necessary and useful at the present time. It is necessary for the public wel- fare and safety that every practical guaranty shall be provided by law to assure the people generally, as well as the members of the
46 HISTORICAL
several parties, that political parties shall be fairly, freely and hon- estly conducted, in appearance as well as in fact. The method oi' naming candidates for elective public offices by political parties and voluntary political organizations is the best plan yet found for placing before the people the names of qualified and worthy citizens from whom the electors may choose the officers of our government. The government of our state by its electors and the government of a political party by its members are rightfully based on the same general principles. Every political party and every voluntary political organization has the same right to be protected from the interference of persons who are not identified with it as its known and publicly avowed members, that the government of the state has to protect itself from the interference of persons who are not known and regis- tered as its electors. It is as great a wrong to the people, as well as to the members of a political party, for one who is not known to be one of its members to vote or to take any part at any election or other proceedings of such political party, as it is for one who is not a qualified and registered elector to vote at any state election or take any part in the business of the state. Every political party and vol- unteer political organization is rightfully entitled to the sole and exclusive use of every word of its official name. The people of the State and the members of every political party and voluntary political organization are rightfully entitled to know that every person who offers to take any part in the affairs or business of any political party or voluntary political organization in the State is in good faith a member of such party. The reason for the law which requires a secret ballot when all electors choose their officers, equally requires a secret ballot when the members of a party choose their candidates for public office. It is as necessary for the preservation of the public welfare and safety that there shall be free and fair vote and an honest count as well as a secret ballot at primary elections, as it is that there shall be a free and fair vote and an honest count in addition to the secret ballot at all elections of public officers. All qualified electors who wish to serve the people in elective office are rightfully entitled to equal opportunities under the law.
"The purpose of this law is better to secure and preserve the rights of political parties and voluntary political organizations, and of their members and candidates, and especially of the rights above stated."
Much has been written and said about "Statement No. 1" and "Statement No. 2," under the Direct Primary Law, but for the infor- mation of those who may not understand what their signification is, it may be well to show what they are.
HISTORICAL 17
Section 12 of the act provides:
"Before or at the time of beginning to circulate any petition for nomination to any office under this law, the person who is to be a candidate for such nomination shall send by registered mail or other- wise to the Secretary of State or the County Clerk or City Clerk, Recorder, or Auditor, as the case may be, a copy of his petition for nomination, signed by himself, and such copy shall be filed and shall be conclusive evidence for the purposes of this law that said elector has been a candidate for nomination by his party. All nominating petitions and notices pertaining to state or district offices to be voted for in more than one county and for Judges of the Circuit Court and District Attorneys, shall be filed in the office of the Secretary of State; for county offices and district offices to be voted for in one county only shall be filed with the County Clerk; and for all city offices in the office of the City Clerk, Recorder, or Auditor, as the case may be."
Among the declarations made by candidates are these:
"If I am nominated for the office of , at the primary
nominating election to be held in the (State of Oregon), (district),
(county), (city), the day of , 19.., I will accept the
nomination and will not withdraw, and if I am elected I will qualify as such officer."
"If I am nominated and elected, I will, during my term of office (here the candidate, in not exceeding one hundred words, may state any measures or principles he especially advocates, and the form in which he wishes it printed after his name on the nominating ballot, in not exceeding twelve words.)
If an elector seeks the nomination for "Senator or Representative in the Legislative Assembly," he may include one of the following two statements in his petition; but if he does not do so, the Secretary of State or County Clerk, as the case may be, shall not on that account refuse to file his petition:
"STATEMENT NO. 1.
"I further state to the people of Oregon, as well as to the people of my Legislative district, that during my term of office I will always vote for that candidate for United States Senator in Congress who has received the highest number of the people's votes for that position at the general election next preceding the election of a Senator in Congress, without regard to my individual preference.
(Signature of the candidate.)
48 HISTORICAL
"STATEMENT NO. 2.
''During my term of office I shall consider the vote of the people for United States Senator in Congress as nothing more than a recommendation, which I shall be at liberty to wholly disregard if the reason for doing so seems to me to be sufficient.
(Signature of the candidate.)
After the official returns of any primary election are in, the candidates for any and all offices receiving the highest number oi votes become the regular nominees thereby of their several political parties. Thereafter, at the regular general election, they are then voted for by the voters at their prescribed voting polls in the several precincts. Exactly the same formalities are observed at a primary nominating election as prevail at the regular election. There are the judges of election and clerks of election, together with their clerks, who must keep strict tally of all votes, which are afterwards counted. The names of all candidates are noted upon sheets, upon which the totals are afterwards made. These are afterwards securely sealed, as are the ballot boxes, and are then turned over to the City Auditor, County Clerk or other authorized person. The chairmen of the political parties entering the contest keep tally sheets exactly like those filed with the Auditor or other person, to ensure a correct report, in case any accidental or intentional mishap might occur. This does exact justice to all candidates, and makes much for purity in elections.
In Oregon the Australian ballot system is used, of which all that is good and nothing that is bad, can be said. This subject will be properly considered in the following chapter.
THE AUSTRALIAN BALLOT LAW.
The Australian Ballot Law is an importation which flourishes well on Oregon soil. Its eminent fairness, the care with which the indi- vidual preferences of the voter are safeguarded, have made it pop- ular, and there is little doubt but that it will long continue to be the law governing elections. No human fabrication is perfect, but this comes as near to being so as any system which has yet been devised, and it is a credit to the Australian branch of the great English-speaking race to have formulated so estimable a procedure.
A general epitome of the law will be herein attempted.
The Australian Ballot Law was adopted by the Legislature in 1891. It provides for "a general election to be held in the several election precincts in this state on the first Monday in June, 1892, and biennally thereafter, at which shall be chosen so many of the follow- ing officers as are by law to be elected in such year, namely: A
HISTORICAL 49
Governor, Secretary of State, State Treasurer, Superintendent of Public Instruction, State Printer, Justices of the Supreme Court, members of Congress, Circuit Judges, members of the State Senate and House of Representatives, County Judges, District Attorneys, County Superintendent s of Common Schools, Commissioners of the County Court, County Clerks, Sheriffs, County Treasurers, Coroners, Assessors, County Surveyors, Justices of the Peace, and Constables, and all other state, district, county, and precinct officers provided by law."
At the November term of the several County Courts preceding a general election, election precincts in such county are set off and established. At the regular January term preceding a general elec- tion, the County Court is commanded to "appoint three judges and three clerks of election for each election precinct, to serve for the period of two years, and shall designate one judge to be chairman." Such judges must be able to read and write the English language, and must not be candidates for any elective office at such election. On the day of the election "in all election precincts in which were cast one hundred and fifty (150) or more ballots at the last general elec- tion," the County Court is empowered to appoint a night board of judges and clerks, who shall assemble to count the ballots of the day, "at 7 P. M., at their respective polling places." Judges and clerks of the second, or "night" board, relieve the first board, "which shall certify and sign the poll books" before passing them over to the second board.
The County Clerk is required to post the names of the judges and clerks appointed "in a conspicuous place in his office, and keep the same posted for three months." A hearing for remonstrances against such apppintments is provided for to be heard "at 10 o'clock A. M. on the second Wednesday of the following February term of the several County Courts," etc. Each appointee is notified of his appointment by mail, and his acceptance thereof is requested. When the acceptances comes in, the County Clerk attaches it to the stub of the notification book. Appointees hold office for two years. Fail- ures to accept or vacancies, from any cause, are provided for in similar manner.
Thirty days before any general or presidential election, and at least ten days before any special election, it is the duty of the County Clerk "to prepare printed notices of the election and mail two of said notices to each judge and each clerk of election in each precinct," who are required to post same in public places.
At the election each judge and clerk takes the oath to perform his duties "according to law/' and to "studiously endeavor to prevent fraud, deceit, and abuse in conducting the election."
50 HISTORICAL
Provision is made for the filling of the places of absentees, whether judges or clerks, on the day of the election. Provision is also made that "candidates, or their duly appointed agents, to such reasonable number, not more than three, shall be allowed to have desk facilities outside the guard rail, but near enough to distinctly hear the chairman as he reads aloud each ballot, so they may be able to keep a private tally sheet in accord with the official clerks."
Polls are to be opened at 8 A. M., and closed at 7 P. M., but the judges are allowed, in their discretion, to adjourn the polls at 1 P. M. for an hour, "proclamation of the same being made; but the judges and clerks shall keep together, and at no time shall more than one of them be out of the presence of the others." Prior to the opening and thirty minutes before the closing of the polls, "the chairman of said judges of election shall make public proclamation of the same."
"The ballot boxes, poll books, ballot stubs and tally sheets shall be constantly kept together in the presence and view of at least four of the said officers, and the candidates and persons duly appointed as provided in Section 18 of the Australian Ballot Law (Section 2778), from the opening of the polls until the count is completed and the returns signed and sealed . . . and after the count has once begun it shall continue until fully completed, without any adjournment, and in presence of all judges and clerks and persons duly authorized to be present."
The judges are authorized to challenge any person offering a vote whom they suspect is not a duly qualified elector. Clerks or any elector present have the same privilege of challenge. The chairman of the judges is authorized to administer an oath to all challenged persons requiring them to truly answer all questions put to them touching upon their place of residence and qualifications as an elector at the election. In case the person challenged refuses to answer fully any question, "the judges shall reject his vote."
If the challenge is not "withdrawn after the person offering to vote shall have answered the questions put to him," the chairman administers the oath of qualification. When any person's vote is challenged, the clerks are required to note on the poll books, at the end of such person's name, "Challenged and sworn," and "rejected," or "voted," as the case may be.
The rules governing the qualifications of voters are as follows:
"1. The place shall be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.
"2. A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or territory or county of this state for a temporary purpose only.
HISTORICAL 51
"3. A person shall not be considered or held to have gained a residence in any county of this state into which he shall come for temporary purposes only, without the intention of making said county his home, but with the intention of leaving the same when he shall have accomplished the business that brought him into it.
"4. If a person remove to any other state, or to any of the terri- tories, with the intention of making it his permanent home, he shall be considered and held to have lost his residence in this state.
"5. The place where a married man's family reside shall be con- sidered and held to be his residence;
"6. The place where an unmarried man sleeps shall be considered and held to be his residence.
"7. If a person shall go from this state into any other state or territory and there exercise the right of suffrage, he shall be con- sidered and held to have lost his residence in this state.
"8. All qualified voters shall vote in the election precinct in the county where they may reside for county officers, and in any county in the state for state officers, or in any county of a congressional district in which such electors may reside for members of Congress."
Before voting begins, the ballot boxes are unlocked and turned upside down to empty them of anything they might contain. They are then relocked and the keys pass into the possession of some one of the judges other than the chairman.
No person is allowed to stand or approach within fifty feet of the polls except peace officers, and "but ten electors shall be per- mitted to approach the polls within fifty feet at the same time; Provided, however, that the said judges of election shall, if requested, permit one person from each political party, selected by the party, to stand outside the guard rails at the polls, while open for receiving votes, for the purpose of challenging voters; and the said judges of election shall, if requested, permit the respective candidates, or some person selected by a candidate or by several candidates, or by a political party, to be present in the room, but outside the guard rail, where the said judges are during the time of receiving and counting the votes."
Judges of election are also given power to enforce the law and to punish offenders.
At the closing of the polls the electors' names are counted who have voted, "and the number written and certified in each of the poll books at the end of the list, and the same shall be immediately signed by the chairman and each of the judges and clerks in the manner indicated above." The ballots are then to be read, counted, tallied and strung."
All rejected ballots are to be placed carefully in envelopes, and
52 HISTORICAL
every "such ballot not counted for any party shall be immediately indorsed on the back thereof with pen and ink, by the chaiman, 'not counted for— ' (stating what office or offices), who shall sign his initials thereto."
The law intends, also, to impart to the voter a certain dignity, it being held that each person's political preferences are sacred to himself alone. Accordingly, when a voter appears, announces his name and place of residence, he is carefully looked up on the poll books, where his name should be registered, together with the political party to which he belongs. If his name is found on the list, or if his vote is admitted upon the sworn affidavit of freeholders, he is given a ballot, his name entered and he proceeds into a separate compartment of the polling booth, where he checks off with a cross the names of the candidates for whom he desires to vote. He is here subject to no outside influence, and can freely express his choice. His ballot he then folds and hands to the judge who presides over the ballot box, announces his name and the laconic utterance, "Voted," and the deed is done.
". . . Immediately upon the closing of the polls the judges shall cause all the white ballots remaining unused to be immediately destroyed by tearing them in pieces or by burning them."
County Clerks open the returns and give certificates for compen- sation of judges and clerks. There are a number of other matters in relation to the election laws which are so well understood as to require no special mention here, and of which both the bar and the average intelligent citizen is well informed.
CORRUPT PRACTICES ACT.
Herewith is given a concise summary of what is known as the "Corrupt Practices Act," without which the subject of Oregon's Election Laws, as given in this work, would be incomplete. It was specially prepared for the information of voters by the Secretary of State's office, and is as follows:
"1. Candidates for nomination to any state or district office, composed of more than one county, and friends of any such candi- date, may file with the Secretary of State for publication, not later than the thirty-third day before the biennial primary nominating elections, with his portrait cut if he wishes, a printed or typewritten statement or statements, over his or their signatures, stating the reasons why he should be nominated; (providing his petition for nomination is duly filed with the Secretary of State not later than the forty-first day before said primary nominating elections) ; Au- gust 22, 1910.
"2. Any person or -persons opposing the nomination of such
HISTORICAL 53
candidate may, not later than the thirty-ninth day before said pri- mary nominating elections, file with the Secretary of State, their printed or typewritten statements over their signatures, of the rea- sons why such candidate should not be nominated; but every state- ment shall be accompanied by proof, by affidavit or by Sheriff's return, that they have caused to be served personally and in person upon such candidate a true copy of such statement; August 16, 1910.
"3. Each candidate shall be allowed one page of printed matter, and those opposing him shall be allowed one page, and shall pay for one page of space in the publication herein provided for, as follows: For the office of United States Senator in Congress, $100; for Rep- resentative in Congress, $100; for Justice of the Supreme Court, $75; for Governor, $100; for Secretary of State, $100; for State Treasurer, $100; for State Printer, $100; for State Superintendent of Public Instruction, and Attorney-General, each, $75; for Commissioner of Labor Statistics and Inspector of Factories and Workshops, $50; foi Senator or Representative in the Legislative Assembly, $10; for Circuit Judge, and District Attorney, $50 each; for candidates for any other office for a district consisting of one or more counties, or state office, $25. Any candidate may have additional space at the rate of $100 per page, but no payment shall be received for less than a full page; provided, that not more than three additional pages shall be allowed to any one candidate and payments made when the state- ment is offered for filing. These are to be printed, bound in pamphlet form and sent to the voters by the Secretary of State.
"4. Not later than the thirtieth day before the regular biennial election the State Executive Committee or Managing State Managing Committee or managing officers of any political party or organiza- tion having nominated candidates, may file with the Secretary of State portrait cuts of the candidates and typewritten statements and arguments for the success of its principles and the election of its candidates, and opposing or attacking the principles and candidates of all other parties. All portrait cuts, statements and arguments of all political parties and independent candidates shall be bound together in one pamphlet, and no party shall have more than twenty- four pages, nor any independent candidate more than two pages, paying to the Secretary of State at the time of filing at the rate of $50 for each printed page; October 9, 1910.
"5. No sums of money shall be paid, and no expenses authorized or incurred by or on behalf of any candidate to be paid by him, except such as he may pay to the state for printing, as herein provided, in his campaign for nomination to any public office or position in this state, in excess of fifteen per cent of one year's compensation or salary of the office for which he is a candidate; provided, that no
54 HISTORICAL
candidate shall be restricted to less than $100 in his campaign for such nomination.
"6. No sums of money shall be paid and no expenses au- thorized or incurred by or on behalf of any candidate who has received the nomination to any public office or position, except such as he may contribute towards payment for his political party's or independent statement, to be paid by him in his campaign for election, in excess of 10 per cent of one year's salary or compen- sation of the office for which he is nominated, provided that no candidate shall be restricted to less than $100.
"7. Every candidate for nomination or election to public office shall, within 15 days after the election at which he was a can- didate, file with the Secretary of State, if a candidate for United States Senator, Representative in Congress or any state or dis- trict office in a district composed of more than one county, but with the County Clerk for legislative office in a district composed of one county, and for county and precinct offices, and with the town clerk, auditor or recorder of the town or city for town, city or ward offices, an itemized sworn statement setting forth in detail all moneys contributed, expended or promised by him to aid and promote his nomination or election or both, and for the election of his party candidates and all existing, unfulfilled prom- ises of any character and all liabilities remaining uncanceled. If no money or other valuable thing was given, paid, expended, contributed or promised and no unfulfilled liabilities were in- curred by a candidate, he shall file such statement within 15 days after the election. Any candidate failing to file such a statement shall be fined $25 for every day on which he was in default; and his name shall not be printed upon the ballot unless statements of account and expenses required by or on behalf of the candidate have been filed. October 23, 1910.
"8. Every political committee shall have a treasurer, who is a voter, and he shall keep detailed accounts of all its receipts, payments and liabilities. Similar accounts shall be kept by every person who receives or expends money or incurs liabilities to the amount of more than $50 for political purposes, and by every po- litical agent and candidate. Every person receiving or expending money or incurring liability by authority or in behalf of such candidates, committees, agent or other person or political party or organization shall, on demand, and in any event, within 14 days after such receipt, expenditure or incurrence of liability, give such treasurer, agent, candidate, or authorized person proper vouchers; and every payment, except payments less in the aggre- gate than $5, shall be vouched for by a receipted bill, stating the
HISTORICAL 55
particulars of expense. Every voucher, receipt and account shall be part of the accounts and files of such treasurer, agent, candidate or other person, and shall be preserved by the public officer with whom it shall be filed for six months after the election.
''9. Any person not a candidate who expends money for value greater than $50 to aid in the election of any candidate or candidates, party ticket or measure, shall, within 10 days after the election, file with the Secretary of State, or with the County Clerk for county offices, or city officer for municipal offices, an itemized statement of receipts, expenditures and vouchers for every sum in excess of $5 and at the same time deliver a duplicate statement and copy of vouchers to the candidate or treasurer of the organization. October 4 and November 18, 1910."
THE TORRENS LAND LAW.
In describing the Torrens Land System as it applies in Oregon, it is necessary to the subject in hand that some little consideration be given the entire subject of real estate transfers, and the sev- eral systems that are in vogue. This is essential, if for no other reason, that one may make some comparisons as to the merits of the several systems of transfers. Reference will be made in this connection to the able and concise work of William C. Nib- lack, of the Chicago bar, which is at the same time exhaustive and which fully covers the subject.
During the reign of Queen Elizabeth an act was passed re- quiring land sales in certain counties to be enrolled, but it was so carelessly and loosely framed as to become inoperative. We find that another act was passed by Parliament in 1617, which proved equally unsatisfactory. For some reason, two bills of sim- ilar tenor, introduced respectively in 1649 and 1651, failed. Other bills followed, but became ineffective. In 1708, in the counties of York and Middlesex, registries were established, and that they have proven unpopular generally is proof enough that they have not been adopted in other counties, but are still confined to York and Middlesex.
In 1862 Lord Westbury's act was passed, entitled "An Act to Facilitate the Proof of Title to and the Conveyance of Real Estate," which had as its object the registration of land titles, but it proved ineffective. Lord Cairn's act was passed in 1875. As Nib- lack says: "This law was also for the registration of titles. It had <i precarious existence for twenty-two years, when it was modi- fied and supplemented by the land transfer act, 1897."
In the early '80s definite action was begun along these lines in the United States, although spasmodic efforts were made mani-
56 HISTORICAL
fest some years earlier. At the present time there are in existence three systems of land transfers employed by civilized countries. These may be described as the transfer without recording or regis- tering, the ministerial system of recording deeds and the judicial system of registering titles. Most of the English counties use the first system, "where land is transferred by the production and delivery of all the title deeds, including one from the seller to the purchaser." Were it not for the doctrine of primogeniture, under which the eldest son inherits the real estate of a deceased person, carrying with it the title papers, it would probably be- come more general.
The recording system is one generally employed in this coun- try, wherein title papers are transcribed at length on the public records of the county wherein the land lies — the "lex rei sitae." Some form of this system is utilized "in France, Scotland, Ireland, Belgium, Italy, Spain, Canada, Australia, the Republics of South America, parts of Switzerland, the counties of Middlesex and York in England, and in parts of Asia and Africa."
It is Niblack's opinion that "in the statement of its ele- mentary principles to a layman who does not comprehend the danger that title may not pass with the certificate, the Torrens system may seem to be the acme of simplicity, but it necessarily becomes loaded down with formulas, details and complications as work progresses under it." And again: "One uniform sys- tem is much more desirable than two systems, even though they are of equal merit, and, after sufficient experimenting has been done, one system will be adopted for general use."
The third, or judicial system of registering titles was em- ployed in some of its features in European countries two hun- dred years ago. Notably is this the case in Russia, Turkey and Norway, as it is also in Mexico. The distinctive features of title registrations, as we are familiar with them, is practically modern. The first record we have of this is embodied in a report on the law of real property by an English commission, appearing in 1830. To Australia belongs the distinction of having first adopted the plan, as is shown by the following:
"The boldest effort to grapple with the problem of simpli- fication of title of land was made by Mr. (afterwards Sir Robert) Torrens, a layman, in South Australia, in 1857. When he was commissioner of customs in that colony he had been struck by the comparative facility with which dealings in regard to trans- fers of undivided shares of ships were carried out under the sys- tem of registration provided in the Merchant Shipping Acts. Subsequently becoming a registrar of deeds, he became acquainted
HISTORICAL 57
with the confusion and uncertainty inseparable from most questions of title to land. He devised a scheme of registration of title (as opposed to the old schemes of registration of deeds), mod- eled on the Merchant Shipping Acts, with such modifications as the different nature of the subject matter demanded. After some opposition, his scheme was passed through Parliament as the Real Property Act (No. 15 of 1857-58). Torrens himself car- ried it into operation, and more than 1000 titles were registered during the first two years. The prospects of the system were so promising that the other colonies soon followed the example of South Australia. A similar act was passed in Queensland in 1861, in New South Wales, Victoria and Tasmania in 1862, in New Zealand in 1870, in Western Australia in 1874, and in Fiji in 1876."
Titles are passed on and registered in some countries under the Torrens system by the registrar or commissioner of titles, as judicial officer; in others by a court, as it has been done in the United States in those states where the Torrens system is in vogue. The recording officer in some countries is the judicial officer; in others, not. An indemnity fund is provided for in some countries; in others it is not. Even a forged instrument conveys title under some laws, while it does not under other laws and circumstances. "In some countries registers are public and in others private. There are many kinds of differences be- tween Torrens laws, and this fact has led some writers to speak of the acts which have been passed in this country as 'so-called Tor- rens laws.' '
Among the states of the Union which have passed Torrens acts may be mentioned the following: California and Illinois, 1897; Massachusetts, 1898; Oregon and Minnesota, 1901; Colorado, 1903; Ohio, 1896, but being declared unconstitutional, was re- pealed in 1898. The Oregon act is based almost verbatim upon the Illinois act, and that of Colorado upon the Minnesota act.
The purpose of the Torrens system is "under governmental authority to establish and certify to the ownership of an absolute and indefeasible title to realty, and to simplify its transfer. . . . A title is registered, and a governmental certificate is issued, which states that the person named in it has a specific interest in the land described in it, and afterwards the title to the land cannot pass except by entering on the register the name of the trans- feree and the issue of a new certificate to him, on the surrender of the old one. All mortgages, liens or other matters affecting the title to a piece of registered land must be noted on the page of the official register, which is set apart for that land. The
58 HISTORICAL
theory is that the exact condition of the title to a piece of regis- tered land at any given time may be seen by turning to the page of the register which has been set apart for it."
A review of the material points embodied in the Torrens Land Law as it exists in Oregon is of interest in the present connec- tion. The Legislature of Oregon passed the act in 1901. It is entitled "An act concerning land titles, creating the offices of registrars of titles, prescribing the duties of said officers, provid- ing for the registration of title to real estate, prescribing the manner in which registration of title may be obtained, and the rights accruing thereunder."
The act provides that recorders and ex officio recorders of deeds in the several counties of the state shall be registrars of titles in their respective counties, and their deputies shall be deputy registrars; that deputies may perform the duties of registrar in his name and that such shall be held the acts of the registrar; that in case of his death, the chief deputy shall become acting registrar until the vacancy is filled, and he shall file a bond; that no registrar or deputy registrar shall engage in the practice of law during their term; that the registrar shall be liable for any neglect or omission of the deputies of his office; that the owner of an estate may apply in person, whether his interest is legal or equitable in the land, or by an attorney in fact. A corpora- tion may apply by its authorized agent, an infant by his natural or legal guardian. The person in whose name application is made is designated as the applicant. The act further provides:
That no mortgage, lien, charge or lesser estate than a fee simple shall be registered unless the fee simple to the same land is first regis- tered; that it shall not be an objection to bringing land under this act, that the estate or interest of the applicant is subject to any outstanding lesser estate, mortgage, lien or charge, but every such lesser estate, mortgage, lien or charge shall be noted upon the certificate of title and the duplicate thereof, and the title or interest certified shall be subject only to such estates, morgages, liens and charges as are so noted, except as otherwise provided; that no title through tax sale or assessment shall be entitled to be first registered, unless the applicant or those through whom he claims title have been in undisturbed posses- sion of the land for ten years, and shall have paid all taxes and assessments legally levied thereon for seven successive years of that time.
The application must be made in writing, signed and sworn to by the applicant or other person making the application in his behalf. It must set forth the name and residence of the applicant,
HISTORICAL , 59
and if made by another acting in his behalf, that other's name and place of residence; whether the applicant (unless a corpora- tion), is married or not, and if married the name and residence of the husband or wife; the description of the land; the appli- cant's estate or interest in the same, and whether the same is subject to an estate of homestead; whether the land is occupied or unoccupied, and if occupied by any other person than the appli- cant, the name and postoffice address of each occupant, and what estate or interest he has or claims in the land; whether the land is subject to any lien or encumbrance, and if any, its nature and amount, and if recorded, the book and page of the record, together with the name and postoffice address of each holder thereof; whether any other person has any estate or claims any in- terest in the land, in law or equity, in possession, remainder, re- version or expectancy, and if any, the name and postoffice ad- dress of every such person, and the nature of his estate or claim; if boundary lines are to be settled or established, the name and postoffice addresses of all the owners of the adjoining lands that may be affected thereby, so far as diligent inquiry may be able to establish them; if a male, that he is of the full age of twenty- one years, and if a female, that she is of the full age of eighteen years; if for a minor, the age of such minor; if by husband or wife, the other shall by indorsement thereon acknowledge his or her assent to the registration as prayed; when the place of residence of any person is unknown it shall be so stated, coupled with the statement that upon diligent inquiry the applicant has been unable to ascertain the same. All persons named in the ap- plication shall be considered as defendants thereto, and all other persons shall be included and considered as defendants by the term "all whom it may concern;" any number of contiguous pieces of land in the same right, or any number of pieces of property in the same county having the same chain of title and belonging to the same person, may be included in one appli- cation.
Section 39 of the act provides:
"The registered owner of any estate or interest in land brought under this act shall, except in cases of fraud to which he is a party, or of the person through whom he claims without valuable consideration paid in good faith, hold the same subject only to such estates, mortgages, liens, charges and interests as may be noted in the last certificate of title in the registrar's office, and free from all others, except:
"1. Any subsisting lease, or agreement for a lease, for a period not exceeding five years, where there is actual occupation
60 HISTORICAL
of the land under the lease. The term lease shall include a verbal letting.
"2. All public highways embraced in the description of the lands in the certificate shall be deemed to be excluded from the certificate.
"3. Any subsisting right of way or other easement, however created, upon, over or in respect of the land.
"4. Any tax or special assessment for which a sale of the land has not been had at the date of the certificate of title.
"5. Such right of appeal, right to appear and contest the application, and of such action, or to make counterclaim, as is al- lowed by this act."
The claim that the condition of the title to land can be seen at a glance under the Torrens system is practically true, but the registrar's records "all say in effect that the act of registration is the operative act to convey or affect land, but the specific sec- tions providing for the filing of papers and instruments in the registrar's office and the entering of memorials on the register, are not so definite in the statement of time when they shall become effective to bind the land." All the acts in this country are based upon or fashioned after the Victorian land transfer act of 1890, in a general way. Under that act it has been held that a purchaser of land, making a search for a title, should not merely rely upon his inspection of the register, but should also ascertain whether any instruments have been produced for regis- tration which have not been recorded.
One law writer says that "under the Torrens system a trans- action in real estate may be closed up with great rapidity. . . . One may admit that when only a small amount of business is done in the registrar's office, a single transaction may be quickly closed, but the test will come when the system is carrying a fair share of the transfers which are made in a populous com- munity, and when the persons are awaiting their turns to transfer land in the only place in the county where the title can be passed."
HOMESTEAD LAWS.
By a beneficent arrangement known under the general desig- nation of the "Homestead Law," Congress has at various times in various ways secured to the citizens of the Republic the right to enter upon and acquire title in public lands. The law of home- steads is of wide and general application in the Western states particularly, and Oregon is no exception. So it will be readily seen that what applies in other states applies equally in Oregon, and it has been suggested that a resume, brief as may be consistent
HISTORICAL 61
with the importance of the subject, should be included in this work.
The right to secure, settle upon and acquire title to not ex- ceeding one quarter section, or one hundred and sixty (160) acres of public land, by establishing and maintaining a residence thereon and cultivating the same for the continuous period of five years, is secured to properly qualified persons, under the homestead laws of the United States. Among the qualifications required are these:
"A homestead entryman must be the head of a family or a person who has arrived at the age of 21 years, and a citizen of the United States, or one who has filed his declaration of inten- tion to become such, as required by the naturalization laws, to which section 5 of the Act of March 3, 1891 (26 Stat. L., 1095; Appendix No. 44), attaches the condition that he must not be the proprietor of more than 160 acres of land in any state or terri- tory."
Section 2289 of the Revised Statutes restricted applicants for homestead entries to "unappropriated public lands upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption," but the Act of March 3, 1891, which repealed the pre-emption laws, so amended section 2289 as to describe the lands subject to home- stead entry simply as "unappropriated public lands."
All applicants for homestead lands are required to fill out and sign a prescribed form and to file it in the local land office of the land district in which the land applied for is located, accom- panied by the legal fee and commission in each case and the proper affidavits made by the homestead applicant. These affidavits must be made before the register or receiver (2290 Rev. Stat.) or any United States commissioner or commissioner of the court exercising Federal jurisdiction in the territory or before the judge or clerk of any court of record in the land district in which the lands are situated.
If the affidavits are taken out of the county in which the land applied for is located, the applicant must show by affidavit satisfactory to the Commissioner of the General Land Office that the same were taken before the nearest or most accessible officer qualified to take the same in the land district in which the land applied for is located. (Sec. 2294, Rev. Stat., as amended by Act Mar. 11, 1902, 32 Stat., p. 63; Appendix No. 91.)
A person in active service in the Army or Navy of the United States whose family or some member thereof is residing on the land, which he wishes to enter, and upon which bona fide settle-
62 HISTORICAL
ment and improvement have been made, may, by special en- actment, make the affidavit required by law before the officer commanding in the branch of service in which the applicant is engaged. (Sec. 2293, Rev. Stat.; Appendix No. 1.)
A false oath taken before an officer other than a register or receiver, who is qualified by law to administer oaths in homestead cases, is perjury, the same as if taken before the register or receiver.
Where a wife has been divorced from her husband or deserted, so that she is dependent upon her own resources for support, she can make homestead entry as head of a family or as a femme sole.
Where an unmarried woman settles upon a tract of public land, improves the same, establishes and maintains a bona fide residence thereon with the intention of appropriating the same for a home under the homestead law, and thereafter marries before making entry of said land, or before making application to enter said land, she does not, on account of her marriage, forfeit her right to make entry and receive patent for the land; provided, she does not abandon her residence on said land, and is otherwise qualified to make homestead entry: and provided further, that the man whom she marries is not, at the time of their marriage, claiming a separate tract of land under the homestead law.
To obtain a homestead the party should personally select and examine the land and be satisfied of its character and true descrip- tion.
He must file an application, stating his name, residence and postoffice address, and describing the land he desires to enter, and make affidavit that he is not the proprietor of more than 160 acres of land in any State or Territory; that he is a citizen of the United States, or that he has filed his declaration of intention to become such, and that he is the head of a family, or over 21 years of age, as the case may be; that his application is honestly and in good faith made for the purpose of actual settlement and cultivation, and not for the benefit of any other person, persons, or corporation, and that he will faithfully and honestly endeavor to comply with all the requirements of law as to settlement, residence, and cultiva- tion necessary to acquire title to the land applied for; that he is not acting as agent of any person, corporation, or syndicate in making such entry, nor in collusion with any person, corporation or syndicate to give them the benefit of the land entered, or any part thereof, or the timber thereon; that he does not apply to enter the same for the'purpose of speculation, but in good faith, to obtain a home for himself, and that he has not, directly, or indirectly, made and will not make any agreement or contract in any way or manner,
HISTORICAL 63
with any person or persons, corporation, or syndicate whatsoever, by which the title which he might acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except himself; and, further, that since August 30, 1890, he has not acquired title to, nor is he claiming, under any of the agricultural private land laws, an amount of land which, to- gether with the land he is seeking to enter, will exceed in the aggregate 320 acres, and that he has not theretofore had the bene- fit of the homestead laws, and must pay the legal fee and that part of the commissions which is payable when entry is made.
On compliance by the party with the foregoing requirements, the receiver will issue his receipt for the fee and that part of the commissions paid, a duplicate of which he will deliver to the party. The matter will then be entered on the records of the district office and reported to the General Land Office.
A homestead settler on unsurveyed public land not yet open to entry must make entry within three months after the filing of the township plat of survey in the district land office. (Act May 14, 1880, 21 Stat. L., 140; Appendix No. 15.)
In cases of simultaneous applications to enter the same tract of land under the homestead laws, the rule is as follows:
First. Where neither party has improvements on the land the right of entry should be awarded to the highest bidder.
Second. Where one has actual settlement and improvement and the other has not, it should be awarded to the actual settler.
Third. Where both allege settlement and improvements, an in- vesigation must be had and the right of entry awarded to the one who shows prior actual settlement and substantial improvements, so as to be notice on the ground to any competitor. (Report of General Land Office for 1866, p. 19; also case of Helfrich v. King, ? Copp's L. O., p. 164.)
The applicant must, in every case, state in his application his place of actual residence and his postoffice address, in order that notices of proceedings relative to his entry may be sent him. The Register and Receiver will note the postoffice address on their tract books.
An inceptive right is vested in the settler by the proceedings hereinbefore described. He must, within six months after making his entry, establish his actual residence in a house upon the land, and must reside upon and cultivate the land continuously in accord- ance with law for the term of five years. Occasional visits to the land once in six months or oftener do not constitute residence. The homestead party must actually inhabit the land, and must
64
reside upon and cultivate the land and make it the home of himself and family, as well as improve and cultivate it.
At the expiration of five years, or within two years thereafter, he may make proof of his compliance with law by residence, im- provement, and cultivation for the full period required, and must show that the land has not been alienated except as provided in Section 2288, Revised Statutes (Sec. 2291 Rev. Stat.; Appendix No. 1), as amended by Section 3 of the Act of March 3, 1891 (26 Stat. L., 1095; Appendix No. 44).
The period of continuous residence and cultivation begins to run at the date of actual settlement, in case the entry at the dis- trict land office is made within the prescribed period (three months) thereafter, or before the intervention of a valid adverse claim. If the settlement is on unsurveyed land the latter period runs from the filing of plat in the district land office. (Act May 14, 1880, 21 Stat. 140; Appendix No. 15. See circular of October 21, 1885, 4 L. D., 202.)
In grazing districts, stock raising and dairy production are so nearly akin to agricultural pursuits as to justify the issue of patent upon proof of permanent settlement and the use of the land for such purposes.
A settler desirous of making final proof must file with the Register of the proper land office a written notice, in the prescribed form, of his intention to do so, which notice will be published by the Register in a newspaper, to be by him designated as nearest the land, once a week for five successive weeks, at the applicant's expense.
Applicants should begin to make their proofs in sufficient time to complete and file them in the local office within the statutory period of seven years from the date of entry.
The final affidavits and proof may be made before the Register or Receiver, or before any United States Commissioner, or Com- missioner of the Court exercising Federal jurisdiction in the Terri- tory, or before the Judge or Clerk of any Court of record in the land district in which the lands are situated: provided, that in case the affidavits and proof are taken out of the county in which the land is located, the applicant must show, by affidavit satisfactory to the Commissioner of the General Land Office, that said affidavits and proof were taken before the nearest or most accessible officer qualified to take the same in the land district in which the land entered is located, but such showing by affidavit need not be made if the proof be taken in the town or city where the newspaper is published in which the final proof notice is printed. (Act Mar. 11, 1902, 32 Stat. L., 63; Appendix No. 91.)
HISTORICAL 65
Proofs can only be made by the homestead claimant in person, and cannot be made by agent, attorney, assignee or other person, except that in case of the death of the entryman, proof can be made by the statutory successor to the homestead right, in the manner provided by law.
Where a homestead settler dies before the consummation of his claim, the widow, or, in case of her death, the heirs may continue settlement or cultivation, and obtain title upon requisite proof at the proper time. If the widow proves up, title passes to her; if she dies before proving up and the heirs make proof, the title will vest in them. (Sec. 2291, Rev. Stat; Appendix No. 1.)
Where both parents die, leaving infant children, the homestead may be sold for cash far the benefit of the children, and the pur- chaser will receive title from the United States, or residence and cultivation may continue for the prescribed period, when the patent will issue to the children. (Sec. 2292, Rev. Stat.; Appendix No. 1.)
Upon the death of a homesteader who leaves no widow, but both adult and minor heirs, the right to perfect entry passes alike to all the heirs. See Bernier v. Bernier (147 U. S., 242.)
A homestead right cannot be devised away from a widow or minor children.
In case of the death of a person after having entered a home- stead, the failure of the widow, children, or devisee of the deceased to take up residence within six months after the entry, or otherwise to fulfill the demands of the letter of the law as to residence, will not necessarily subject the entry to forfeiture on the ground of abandonment. If the land is cultivated in good faith, the law will be considered as having been substantially complied with. (Tauer v. The Heirs of Walter A. Mann, 4 L. D., 433.)
The rights of a homestead claimant who has become insane may, under Act of June 8, 1880, be proved up and his claim perfected by any person duly authorized to act for him during his disability. (21 Stat. L., 166; Appendix No. 18.)
Such claim must have been initiated in full compliance with law, by a person who was a citizen or had declared his intention of becoming a citizen and was in other respects duly qualified.
The party for whose benefit the Act shall be invoked must have become insane subsequently to the initiation of his cliam.
Claimant must have complied with the law up to the time of having become insane, and proof of compliance will be required to cover only the period prior to such insanity, but the act will not be construed to cure a failure to comply with the law when the failure occurred prior to such insanity. The final proof must be made by
66 HISTORICAL
a party whose authority to act for the insane person during his disability shall be duly certified under seal of the proper probate court.
A person who has made a settlement on a tract and filed his preemption declaration therefor may change his filing into a home- stead if he continues in good faith to comply with the preemption laws until the change is effected, and the time which he has resided upon and claimed the land as a preemptor will be credited upon the period of residence and cultivation required under the homestead laws. (Acts of March 3, 1877, 19 Stat. L., 403, May 27 and June 14, 1878, 20 Stat. L., 63 and 113; Appendix Nos. 5-7.)
In his first homestead affidavit he must set forth the fact of a previous preemption filing, the time of actual residence thereunder, and the intention to claim the benefit of such time, as provided for in the Act. In making final proof on his homestead entry he is required, in addition to the usual affidavit and proof, to make the prescribed "preemption homestead affidavit."
There are three laws providing for leaves of absence in certain cases, that of March 2, 1889 (25 Stat. L., 854; Appendix No. 32), which provides generally for cases of destruction or failure of crops, sickness, or other unavoidable casualty rendering the settler unable to support himself or persons dependent on him upon the land; that of July 1, 1879 (21 Stat. L., 48; Appendix No. 60), pro- viding for the relief of homestead settlers who suffered from the forest fires which prevailed in northern Wisconsin, Minnesota, and Michigan during the summer and autumn of 1894.
The facts to be shown embrace the following, viz.:
1. The character and date of entry, date of establishing resi- dence upon the land, and what improvements have been made thereon by the applicant.
2. How much of the land has been cultivated by the applicant, and for what period of time.
3. In case of failure or injury to crop, what crops have failed or been injured or destroyed, to what extent, and the cause thereof.
4. In case of sickness, what disease or injury, and to what extent claimant is prevented thereby from continuing upon the land; and, if practicable, a certificate from a reliable physician should be furnished.
5. In case of "other unavoidable casualty," the character, cause and extent of such casualty and its effect upon the land or the claimant.
6. In each case full particulars upon which intelligent action may be based by the Register or Receiver.
HISTORICAL 67
7. The dates from which and to which leave of absence is asked.
The proviso annexed to Sec. 2297, Revised Statutes, by the amendatory Act of March 3, 1881 (21 Stat. L., 511; Appendix No. 23), which applies only to homestead settlers, provides that in case such settler has been prevented by climatic reasons from establish- ing actual residence upon his homestead within six months from date of entry, the Commissioner of the General Land Office may, in his discretion, allow him twelve months from that date in which to commence his residence.
No lands acquired under the provisions of the homestead laws are liable for the satisfaction of any debt contracted prior to the issue of patent. (Sec. 2296, Rev. Stat.; Appendix No. 1.)
Only one homestead privilege is allowed to the same person except where the entry is canceled as invalid for some other reason than abandonment.
There are other minor provisions under the homestead law, which need not be mentioned in the present connection.
DESERT LANDS.
The Desert Land Laws of the United States which apply to Oregon, in common with other Western States, are herewith given:
The Act of March 3, 1877, entitled "An Act to provide for the sale of desert lands in certain States and Territories" (19 Stat. L., 337; Appendix No. 4) contained three sections. By the Act of March 3, 1891 (26 Stat. L., 1095; Appendix No. 44, five sections were added thereto, numbered from 4 to 8). The first section pro- vides for the reclamation of such lands by "conducting water upon the same," and that "no person shall be permitted to enter more than one tract of land, and not to exceed six hundred and forty acres, which shall be in compact form." The second section pro- vides "That all lands, exclusive of timber lands and mineral lands, which will not, without artificial irrigation, produce some agricul- tural crop, shall be deemed desert lands, within the meaning of this Act," and the third section provides that "This Act shall only apply to and take effect in the States of California, Oregon, and Nevada, and the Territories of Washington, Idaho, Montana, Utah, Arizona, New Mexico, Wyoming, and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office."
It is therefore prescribed as follows:
First. Lands bordering upon streams, lakes, or other natural bodies of water, or through or upon which there is any river, stream, arroyo, lake, pond, body of water, or living spring, are not subject
68 HISTORICAL
to entry under the desert-land law until the clearest proof of their desert character is furnished.
Second. Lands which produce native grasses sufficient in quan- tity, if unfed by grazing animals, to make an ordinary crop of hay in usual seasons are not desert lands.
Third. Lands which will produce an agricultural crop of any kind in amount to make the cultivation reasonably remunerative are not desert.
Fourth. Lands containing sufficient moisture to produce a natural growth of trees are not to be classed as desert lands.
By the fourth section the party making entry is required at the time of filing the declaration to file also a map of the land, which shall exhibit a plan showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation. Provision is made that persons may associate together in the construction of canals and ditches for irrigation and reclaim- ing tracts entered or proposed to be entered by them, and that they may file a joint map or maps showing their plan of internal im- provements.
By the fifth section it is required that the entryman shall expend, for the purpose of the statute, at least $3 per acre— $1 per acre during each year for three years— and shall file proof thereof during each year, such proof to consist of his affidavit, corroborated by the affidavits of two or more witnesses, showing that the full sum of $1 per acre has been expended during such year and the manner in which expended (Forms 4-074b, 4-074c, p. 301), and at the expiration of the third year a map of plan showing the character and extent of improvements; that failure to file the required proof during any year shall cause the land to revert to the United States, and the money paid to be forfeited, and the entry to be canceled, and it is provided that the party may make his final entry and receive his patent at any time prior to the expiration of the three years on making the required proof of reclamation, of expenditure to the aggregate amount of $3 per acre, and of the cultivation of one-eighth of the land.
The sixth section provides that entries made prior to the date of the amendatory Act of March 3, 1891, may be perfected accord- ing to the provisions of the Act of March 3, 1877, as originally enacted, or at the option of the claimant, may be perfected under the law as amended, so far as applicable, and repeals all acts or parts of acts in conflict with the act as amended.
HISTORICAL 69
The seventh section provides that at any time after filing the declaration, and within the period of four years thereafter, upon making satisfactory proof of the reclamation and cultivation of the land according to the legal requirements, and that he or she is a citizen of the United States, and upon payment in full therefor, a patent shall issue for the land to the applicant or his assigns. It limits the amount of land that may be held by any person or asso- ciation of persons by assignment or otherwise, prior to the issue of patent, to 320 acres as the maximum; providing, however, that this section shall not apply to entries made prior. Provision is made therein for contests on sufficient grounds and that on proof thereof the entry shall be cancelled and the lands and money paid therefor forfeited to the United States.
By the eighth section the provision of the original act and the amendments are extended to Colorado.
By the same section the right to make desert-land entry is restricted to resident citizens of the State or Territory in which the land sought is located, whose citizenship and residence must be duly shown. (Forms 4-274, 4-372a, and 4-373a, pp. 295-298-301.)
1. The amount of land which might be entered by any one per- son under the desert-land law was fixed by the Act of March 3, 1877, at the maximum of one section, or 640 acres. Under the Act of August 30, 1890 (26 Stat. L., 391), no person could be permitted to enter thereafter more than 320 acres in the aggregate under all the land laws, which is construed by the seventeenth section of the Act of March 3, 1891 (26 Stat. L., 1095; Appendix No. 44), not to include the amount of mineral lands entered in the prescribed maxi- mum. Parties initiating claims are required to make affidavit to show observance of such inhibition. (See Form 4-102b, p. 272.) Under the amendatory Act of March 3, 1891, above, no person is entitled to hold, under assignment or otherwise, prior to the patent, more than 320 acres entered as desert land, but this will not affect entries made prior to the approval of the amendatory act.
Assignees must properly prove their assignments by filing in the local office an affidavit and a certified copy of the instrument under which they claim and must make affidavit of the amount of land held. (Form 4-074a, p. 300.)
The requirement that desert-land entries "Shall be in compact form" was not charged by the amendment to said law by the Act of March 3, 1891, and where application is made for lands that do not form a compact body (that is, where there is a material de- parture from a technical half section or lesser legal subdivision), it must be shown by the affidavit of the applicant, corroborated by fwo witnesses, that the land is in as compact form as may be, taken
70 HISTORICAL
in relation to the topography of the surrounding country and the prior appropriation of adjacent lands. The affidavit must be in addition to other parts in the case and must set forth clearly and in detail the facts in relation thereto. (31 L. D. 441.)
2. Under the Act of March 3, 1877, it was held that desert-land entries were not assignable, and that the transfer of such entries, whether by deed, contract, or agreement, vitiated tne entry. This is changed by the seventh section of the Act of March 3, 1877, as amended by the Act of March 3, 1891, above, which recognizes assignments after entry and before patent; but an entry made in the interest or for the benefit of any other person, firm, or corpora- tion, or with intent that the title shall be conveyed to any other person, firm or corporation, is illegal.
3. It has been held that the price of lands sought to be entered under the provisions of the Act of March 3, 1877, was controlled and fixed by the provisions of Section 2357 of the Revised Statutes, but it is now held that the price of lands sought to be entered under the provisions of said Act of 1877, as amended by Section 2 of the Act of March 3, 1891, is to be $1.25 per acre, without regard to the situation of such land in relation to railroad grants. (14 L. D., 74.)
4. A party desiring to avail himself of the privileges of the desert-land act must file with the Register and Receiver of the proper district land office a declaration, under oath, showing that the applicant is a citizen of the United States, or has declared his intentions to become such, and a resident of the State or Territory in which the land sought is located. It must be set up that the applicant has not previously exercised the right of entry under the provisions of this act, and that he intends to reclaim the tract of land applied for by conducting water thereon within four years from date of his declaration. The declaration must also contain a description of the land applied for, by legal subdivision if surveyed, or, if unsurveyed, as nearly as possible without a survey, by giving with as much clearness and precision as possible, the locality of the tract with reference to the already established lines of survey, or to known and conspicuous landmarks, so as to admit of its being readily identified when the lines of survey come to be extended.
5. Attention is called to the terms of this declaration (Form 4-274, p. 295), which are such as require a personal knowledge by entrymen of lands intended to be entered. The required affidavit cannot be made by an agent nor upon information and belief, and the Register and Receiver must reject all applications in which it does not appear that the entryman made the averments contained in the sworn declaration upon his own knowledge derived from a personal examination of the land. The blanks in the declaration
HISTORICAL 71
must be filled in with a full statement of the facts of his acquaint- ance with the land and how he knows its character as alleged. Said declaration must be corroborated by the affidavits of two reputable witnesses who are acquainted with the land and with the applicant, and who must clearly state their acquaintance with the premises, and the facts as to the condition and situation of the land upon which they base their judgment. (Form 4-074, p. 297.)
6. Applicants and witnesses must in all cases state their places of actual residence, their business or occupations, and their post- office addresses. It is not sufficient to name the county and State or Territory where a party lives, but the town or city must be named, and if a residence is in a city the street and number must be given. The Register and Receiver will note the postoffice address on their tract books.
7. The declaration and corroborating affidavits may be made before the Register or Receiver of the land district or before any United States Commissioner or Commissioner of the Court exer- cising Federal jurisdiction in the Territory or before the Judge or Clerk of any Court of record in the land district in which the lands are situated.
In case the affidavits, proofs, and oaths hereinbefore mentioned be taken out of the county in which the land is located the applicant must show by affidavit that it was taken before the nearest or most accessible officer qualified to take said affidavits, proofs and oaths in the land districts in which the lands applied for are located.
Such showing by affidavit need not be made, however, in making final proof, if the proof be taken in the town or city where the news- paper is published in which the final-proof notice is printed. (An Act of March 11, 1902, 32 Stat. L., p. 63.)
The depositions of applicant and witnesses in making final or yearly proof must be taken in the same manner. The affidavit of applicant and witnesses must in every instance, either of original or yearly or final proof, be made at the same time and place and before the same officer.
8. When proof of the character of the land has been made as above required to the satisfaction of the district officers, the appli- cant will pay the Receiver the sum of 25 cents per acre for the land applied for, the Register will receive and file his declaration, and the Register and Receiver will jointly issue, in duplicate, a cer- tificate (Form 4-199, p. 298), acknowledging the receipt of the money paid and showing the filing of the declaration, one of which will be delivered to the applicant, and the other filed by the Register and Receiver with the declaration and proof. These certificates will be numbered in the order issued, and the Register will keep a record
72 HISTORICAL
thereof showing the number, date, amount paid, name of applicant, and description of the land applied for, in each case of original entry, and in addition he will note the same upon his plats and records as in cases of original entries. A similar record will be kept of the yearly proofs made and the maps or plans filed from time to time, under the fifth section, and the yearly proofs and plans will be forwarded to the General Land Office by special letter. At the end of each month an abstract of the declarations filed and certifi- cates issued under this act during the month will be transmitted, accompanied by the declarations, plans, and proofs filed, and the retained copy of certificates in each case. On final proofs and payment being made according to the sixth and seventh sections, a final certificate and receipt will be issued. In ex parte cases, the entryman's right to the land will not be passed upon until the sub- mission of final proof. (See Andrew Clayburg, 20 L. D., 211.)
9. Surveys of desert-land claims cannot be made in advance of the regular progress of the public surveys. After a township has been surveyed the claim made prior to August 1, 1887, can be made without publication of notice to do so (9 L. D., p. 672). Publication of notice of intention to make final proof must be made in all cases of entries instituted since that time. When the land has not been surveyed the notice must contain a description of the land as nearly as possible without a survey, by giving, with as much clear- ness and precision as possible, the locality of the tract with reference to the already established lines of survey, or to known and con- spicuous landmarks, so as to admit of its being readily identified.
When final proof has been submitted on an entry upon unsur- veyed land, if no objections exist, the Register and Receiver will approve the same and forward it to this office without collecting the purchase money and without issuing the final papers. When the land shall have been surveyed, they will require the party to make proof, in the form of an affidavit, corroborated, showing the legal subdivisions of his claim. When this has been done they will correct their records to make them describe the land by legal sub- divisions, and if the proof submitted to this office has been found satisfactory, and if no objection exists in their office, will issue final papers upon payment of the amounts due. (Circular of April 20, 1891, 12 L. D., 376.)
10. Persons making desert-land entries must acquire a clear right to the use of sufficient water for the purpose of irrigating the whole of the land, and of keeping it permanently irrigated. A per- son who makes a desert-land entry before he has secured a water right does so at his own risk; and as one entry exhausts his right
73
of entry, such right cannot be restored or again exercised because of failure to obtain water to irrigate the land selected by him.
11. The source and volume of the water supply, how acquired and how maintained, the carrying capacity of the ditches, and the number and length of all ditches on each legal subdivision of the land must be specifically shown. Applicant and witnesses must each state in full what has been done in the matter of reclamation, culti- vation, and improvement, and by who, and must each answer fully and of their own personal knowledge the questions propounded in the final proof depositions. They must state specifically whether they at any time saw the land effectually irrigated, for without knowledge thus derived the fact of reclamation remains a matter of conjecture. (Case of Charles H. Schick, 5 L. D., 151.)
12. The whole tract and each legal subdivision, if surveyed for which proof is offered must be actually irrigated. If there are some high points or uneven surfaces which are practically not sus- ceptible of irrigation, the nature, extent and area of such spots must be fully stated. In this connection the right to the water used, the quantity of it, the manner of its distribution, and the permanence of the supply are all to be taken into consideration. (Case of George Ramsey, 5 L. D., 120.)
13. Before final proof shall hereafter be submitted by any person claiming to enter lands under the desert-land act, such per- son will be required to file a notice of intention to make such proof, which shall be published in the same manner as required in home- stead and preemption cases.
14. Contests may be instituted against desert-land entries for illegality or fraud in the inception of the entry, or for failure to comply with the law after entry, or for any sufficient cause affect- ing the legality or validity of the claim. Contestants will be allowed a preference right of entry for thirty days after notice of the can- cellation of the contested entry in the same manner as in homestead and preemption cases, and the Register will give the same notice and be entitled to the same fee for notice as in other cases.
15. When relinquishments of desert-land entries are filed in the local land office, the entries will be canceled by the Register and Receiver in the same manner as in homestead, preemption and timber-culture cases, under the first section of the Act of May 14, 1880. (21 Stat. L., 140; Appendix No. 15.)
In the number of cases persons who have initiated claims to public lands under the desert-land Act of March 3, 1877, have allowed the limitation provided by the statute to expire without making the final proof of reclamation of the land and the final payment as required by the act; therefore, in all such cases which
74 HISTORICAL
now exist or which may hereafter exist, the Registers and Receivers will notify the parties of their non-compliance with the law, and that ninety days from date of service of notice will be allowed to each of them within which to show cause why their claims should not be declared forfeited and their entries canceled.
TIMBER AND STONE LANDS.
The United States Laws concerning timber and stone lands, applying to Oregon in common with other Western States, are epitomized as follows:
The Act of June 3, 1878 (20 Stat. L., 89; Appendix No. 6), pro- vides for the sale of timber lands in the States of California, Oregon, Nevada and Washington, and the Act of August 4, 1892, Section 2 (27 Stat. L., 348; Appendix No. 51), extends the provisions of the former act to all the public-land States.
1. The quantity of land which may lawfully be acquired under said acts by any one person or association is limited to not exceed- ing 160 acres, which must be in one body. (See case of Daniel J. Heyfran, 19 L. D., 512.)
2. The land must be valuable chiefly for timber (or stone) and unfit for cultivation at the time of sale (22 L. D., 647.)
3. It must be unreserved, unappropriated, and uninhabited, and without improvements (except for ditch or canal purposes) save such as were made by or belong to the applicant.
4. Lands containing saline or valuable deposits of gold, silver, cinnabar, copper, or coal are not subject to entry under this act.
5. One entry or filing only can be allowed any person or asso- ciation of persons. A married woman may be permitted to pur- chase under said act, provided the laws of the State or Territory in which the entry is made permit a married woman to purchase and hold real estate as a femme sole; but in addition to the proofs already provided for she shall make affidavit at the time of entry that she proposes to purchase said land with her separate money, in which her husband has no interest or claim; that said entry is made for her sole and separate use and benefit; that she has made no contract or agreement whereby any interest whatever therein will inure to the benefit of her husband or any other person, and that she never made an entry under said act, or derived or had any interest whatever, directly or indirectly, in or from a former entry made by any person or association of persons.
6. A person applying to purchase a tract under the provisions of this act is required to make affidavit before a duly authorized attesting officer that he has made no prior application under this
HISTORICAL 75
act; that he is by birth or naturalization a citizen of the United States or has declared his intention to become a citizen. If native born, parol evidence to that fact will be sufficient; if not native born, record evidence of the prescribed qualification must be fur- nished. The affidavit must designate by legal subdivisions the tract which the applicant desires to purchase, setting forth its char- acter as above; stating that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for ditch or canal purposes ( if any exist), save such as were made by or belong to the applicant, nor, as deponent verily believes, any valuable deposits of gold, silver, cinnabar, copper, or coal; that deponent does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or man- ner, with any person or persons whomsoever, by which the title he may acquire from the Government of the United States shall inure in whole or in part to the benefit of any person except him- self.
7. Every person swearing falsely to any such affidavit is guilty of perjury, and will be punished as provided by law for such offence. In addition thereto, the money that may be paid for the land if forfeited, and all conveyances of the land, or of any right, title, or claim thereto, are absolutely null and void as against the United States.
8. The sworn statement required as above (Section 2 of the act) must be made upon the personal knowledge of applicant, except in the particulars in which the statute provides that the affidavit may be made upon information or belief.
9. The attesting officer will in every case read this affidavit to the applicant, or cause it to be read to him in their presence, before he is sworn or his signature is attached thereto.
10. The published notice required by the third section of the act must state the time and place when, the name the officer before who, the party intends to offer proof, which must be after the expiration of the six days of publication (circular of September 5, 1889, 9 L. D., 384), and must also contain the names of the wit- nesses who are to testify. (See case of Sarah L. Bigelow, 20 L. D., 6.) The period of publication is complete when the notice has been inserted for nine successive issues of a weekly newspaper, and the full statutory period has elapsed. (28 L. D., 224.)
11. The evidence to be furnished to the satisfaction of the Register and Receiver at time of entry, as required by the third section of the act, must be taken before an officer authorized to
76 HISTORICAL
take the same under the Act of March 11, 1902 (see rule 12), and will consist of the testimony of claimant, corroborated by the testi- mony of two disinterested witnesses. The testimony will be re- duced to writing by the attesting officer upon the blanks provided for the purpose, after verbally propounding the questions set forth in the printed forms. The accuracy of affiant's information and the bona fides of the entry must be tested by close and sufficient oral examination. The attesting officer will especially direct such examination to ascertain whether the entry is made In good faith for the appropriation of the land to the entryman's own use, and not for sale or speculation, and whether he has conveyed the land or his right thereto, or agreed to make any such conveyance, or whether he has directly or indirectly entered into any contract or agreement in any manner with any person or persons whomsoever by which the title that may be acquired by the entry shall inure, in whole or in part, to the benefit of any person or persons except himself. The attesting officer will certify to the fact of such oral examination, its sufficiency, and his satisfaction therewith.
12. The affidavits and proofs required under this act may be taken before the Register or Receiver, or before any United States Commissioner, or Commissioner of the Court exercising Federal jurisdiction in the territory, or before the Judge or Clerk of any Court of record in the land district in which the lands are situated: Provided, that in case the affidavits and proofs are taken out of the county in which the land is located, the applicant must show, by affidavit satisfactory to the Commissioner of the General Land Office, that it was taken before the nearest or most accessible officer qualified to take said affidavits and proofs in the land district in which the land applied for is located, and such showing by affidavit need not be made in making final proof if the proof be taken in the county or city where the newspaper is published in which the final proof notice is printed. (Act Mar. 11, 1902, 32 Stat. L., 63; Appendix No. 91.)
13. The entire proof must be taken at one and the same time and payment must be made at the time of offering proof. Proofs will in no case be accepted in the absence of a tender of the money; and the Register's certificate will in no case be given to the party or his attorney, but must be handed directly to the Receiver by the Register; and no note will be made upon the plats or tract books until the Receiver's receipt has been issued. The proof, certificate, and receipt must in all cases bear even date when taken before the Register or Receiver.
14. When an adverse claim, or any protest against accepting proof or allowing any entry, is filed before final certificate has
HISTORICAL 77
been issued, the Register and Receiver will at once order a hearing, and will allow no entry until after their written determination upon such hearing has been rendered. They will report their final action in all protest and contest cases, and transmit the papers to this office.
15. After certificate has been issued, contest applications, and protests, will be submitted to this office, as in other cases of contest after final entry.
16. Contests may be brought against timber and stone land applications or entries, in accordance with rule 1 of Rules of Prac- tice, either by an adverse claimant or by any other person, and for any sufficient cause affecting the legality or validity of the filing, entry or claim.
17. In case of an association of persons making application for an entry under this act, each of the persons must prove the requisite qualifications, and their names must appear in the sworn statement, as in case of an individual person. They must also unite in the regular application for entry, which will be made in their joint names, as in other cases of joint cash entry. The forms prescribed for cases of applications by individual persons may be adopted for use in applications of this class, and the sworn statement as to the character of the land may be made by one member of the asso- ciation upon his personal knowledge.
18. No person who has made an individual entry or application can thereafter make one as a member of an association, nor can any member of an association making an entry or application be allowed thereafter to make an individual entry or application.
19. Applicants to make timber-land entries, and claimants and witnesses making final proof, must in all cases state their places of actual residence, their business or occupation, and their postoffice addresses. It is not sufficient to name the county and State or Ter- ritory where a party lives, but the town or city must be named; and if residence is in a city, the street or number must be given.
BIOGRAPHICAL
IN the following short sketches there has been no attempt made to eulogize, no expenditure of adjectives; no effort at "write up"; and no opinion expressed. Each sketch is a brief compilation of facts that are a public record, and as such is wholesome and re- freshing.
The material for these sketches has been gathered from the sub- jects themselves; they have been personally interviewed and every effort has been made to insure accuracy.
The purpose has been to confine this section wholly to living men, that some really authentic record be had of the members of the bar who have done and are doing things. Soon many of those written of here will be gone. It is then that this work will begin to assume its real value, as a comprehensive record of this genera- tion.
It has been a long and painstaking work, and in presenting it to the bar, the publishers do so without misgiving of its hearty recep- tion.
Acknowledgment is made of the courtesy of the members of the bar, for their individual co-operation.
BIOGRAPHICAL
CHARLES HENRY ABEECROMBIE.
Residence 777 Irving avenue; office 172 Tenth street, Astoria, Ore. Born November 8, 1878, at Brandon, Fond du Lac County, Wisconsin. Son of John and Harriet (Earle) Abercrombie. Married February 27, 1904, to Mary Lucile Ford. Attended the grammar schools of Wisconsin until 1887, in which year he removed with his parents to Oregon, and attended the grammar schools at Astoria, graduating from the high school at that place in 1897. Studied law in the office of C. W. and G. C. Fulton in 1897-8-9. Attended the University of Wisconsin from 1899 to 1903, graduating with degree of LL. B. Admitted to the bar at Madison, Wis., June 18, 1903, to the Circuit Court and District Courts of that state, United States, Western District of Illinois, at the same time, and to the Su- preme Court of Oregon, July 1, 1903. Ensign- Lieutenant First Division N. R., O. N. G., 1897-99. Captain First Company Coast Ar- tillery Corps, O. N. G., July 9, 1908, to date. Deputy District Attorney Fifth Judicial Dis- trict, 1904 to 1906. City Attorney, 1906. Member Astoria Amateur Athletic Club, Elks, Masons and Knights of Pythias. Republican.
ALBERT ABRAHAM.
Residence, Roseburg, Ore. Office, same. Born September 10, 1869, at Canyonville, Ore. Son of Solomon and Julia (Hinkle) Abraham. Married May 23, 1899, to Leona E. Shupe. Education received at the public schools of Oakland and Roseburg, Ore.; at the Umpqua Academy, at Wilbur, Ore.; at Bishop Scott's Grammar School, Portland; at the University of Oregon, Eugene, and at the Univer-
sity of California, Berkeley, Cal. Studied law in Portland, Ore., with firm of Dolph, Bellinger, Mallory & Simon, 1888 to 1892. Ad- mitted to the bar of Oregon in October, 1892. In partnership with Victor C. Bellinger, 1892-3; with L. A. Ward, 1896-8. Practiced law in Portland, Ore., until 1898, and since then in Roseburg, Ore. Was referee in bank- ruptcy for Douglas County, at Roseburg, Ore., from 1898 to 1908. State Senator from Fifth Senatorial District, 1908 to date. Republican.
LOUIS J. ADAMS. Residence and o ffi c e S ilverton, Ore. Born Janu- ary 30, 1862, at Portsmouth, Ohio. Son of Frank and Barbara (Peters) Adams. Married September 5, 1888, to May Coolidge. Educated at the public schools and the high school at Portsmouth, Ohio, and at Smith Col- lege, of the same city. Came to Or- egon in 1884. Read law in the office of George G. Bing- ham at Salem, and studied with the Sprague Correspondence School of Michigan. Ad- mitted to the bar at Salem in 1897, and com- menced the practice of law at Silverton im- mediately. Member State Senate, Ninth Congressional District, 1901. Mayor of Sil- verton, 1905 to 1907. Has also served as Councilman and School Director at Silverton. Member K. of P., B. P. O. E. and Odd Fellows' fraternities. Republican.
ROBERT N. AISTROP.
Resid e n c e, 405 Stark street; office 4 North Sixth street, Port land. Ore. Born May 3, 1878, in Warren County, Missouri. Son of John A. and Ophelia (Ed- wards) Aistrop. Marr i e d Septem- ber 3, 1908, to Rachel M. Robin- son. Attended the Central Wesleyan College, Warren, Mo., from Septem- ber 9, 1897, to June, 1901, and later took the law course of the law department of the Univer-
BIOGRAPHICAL
81
sity of Oregon, and graduated in June, 1907, with degree of LL. B. Admitted to the bar in Salem, Ore., June, 1907; began the prac- tice of law in November of that year; form- ing a partnership with W. P. Gregory, which partnership continues to the present time, under the name of Aistrop & Gregory. Be- publican.
SEWARD DUANE ALLEN.
Eesidence 809 Ferry street; office 20-21 Loan & Trust building, Eugene, Ore. Born in Brookfield, Madison County, New York, May 11, 1855. Son of Jonathan and Cynthia (San- ders) Allen. Married to Gertrude Staples October 9, 1889. Attended West Winfield Academy, New York, and graduated from Hamilton College, Clinton, N. Y., with degree of A. B. Admitted to the bar at Duluth, Minn., in 1883, and practiced law in that city until 1903, a portion of the time associated under the firm names of Allen & Parkhurst and Allen & Baldwin. Came to .Oregon in June, 1903. Superintendent of Schools of St. Louis County, Minnesota. Served four terms as City Attorney of Duluth, Minn., and one term as City Attorney of Eugene, Ore. Be- publican.
CLINTON A. AMBROSE.
Eesidence 1414 Oneonta street; office 19-20 Lafay- ette building, Portland. Born July 23, 1883, at Yoncalla, Douglas County, Or e g o n. Son of Nathan A. and Mary E. (Lamb) Ambrose. Eeceived early ed- ucation in Port- land public schools and graduated from Lincoln High School Febru a r y, 1902. Attended the University of Ore- gon Law School and graduated from same with degree of LL. B. in 1906. Admitted by the Supreme Court of Oregon June 21, 1906, since which date he has continued the active practice of his profession. Member M. A. A. C., I. O. 0. F. fraternity. Eepublican.
GUSTAV ANDERSON.
Eesidence 1778 Valley avenue; office Shoe- maker building, Baker .City. Born Decem- ber 17, 1863, near the City of Geffe, Sweden. Son of Anders and Martha (Larsen) Ander- son. Eemoved to Olympia, Wash., in 1882, and to Oregon in 1887. Education, prior to leaving Sweden, was in the public schools,
from which he graduated, and under private instructor. Graduated from Olympia Collegi- ate Institute in June, 1887, and from the law department of the University of Oregon in 1895, with degree of LL. B. Admitted to the bar June 1, 1895, and later to the Federal Courts, including the Court of Appeals. Prac- ticed law in Portland until September, 1905, when, owing to ill-health, and believing the climate would benefit, he accepted an offer into partnership with the then District Attor- ney at Baker City, and has practiced there since. City Attorney of Baker City. Ee- publican.
GRANVILLE GAY AMES.
Eesid e n c e 209 Tenth street; of- fice 732 Marquam building, Portland, Oregon. He was born February 1, 1852, at Sheboy- gan Falls, Wis. Son of Isaac and Eoana (Witt) Ames. Married September 29, 1904, to Minnie B. E o b b. Attended country schools in Wisconsin, Minne- sota and Iowa un- til 1872. In 1873 spent one year at the State Normal School of Minnesota at Mankato. From 1874 to 1878 attended Carleton College, at North- field, Minnesota, taking a two-year prepara- tory course and two years of the college course. In 1878 and 1879 attended the law school of the University of Iowa, graduating June 19, 1879, with the degree of Bachelor of Laws. Was admitted to the bar at Iowa City, la., in June, 1879; to the United States District Court of Iowa in 1880, and to the United States Circuit Court of Iowa in 1881. Came to the State of Oregon in that year (1881) and the following year was admitted to the Supreme Court of the State of Oregon; to the United States District Court of Oregon in 1891, and to the United States Circuit Court of Oregon in the same year. Was also ad- mitted to the Supreme Court of the State of Washington in that year. Was appointed Consul from Costa Eica July 7, 1897, which office he still holds. Eepublican.
HOMER D. ANGELL.
Eesidence 726 Upper Drive, Portland Heights; office 601 Fenton building, Portland, Ore. Born January 12, 1875, in Wasco Coun- ty, Oregon. Son of Thomas and Susan P. (Yeomans) Angell. Married July 29, 1908, to Mayme Henton. Attended public school, Wasco Independent Academy, The Dalles, Ore.; University of Oregon, 1896-1900, from
82
BIOGRAPHICAL
which he graduated with degree A. B.; the Law Columbia University, New York City, 1900-1903, with degrees M. A. and LL. B. Admitted to bar for New York State, New York City, in 1903, and to the bar of the State of Oregon same year. Member of the firm of Angell & Fisher. Eepublican.
CARL A. APPELGREN.
Eesid e n c e 266 Broadway street; office 208 Lewis building, Portland. Born in Lyrestad, Sweden, July 26, 1871. Son of Carl M. and Maria Christina (Pears- dotter) Appelgren. Married Septem- ber 2, 1896, to Bes- sie Nyhus. Came to Oregon August 5, 1889. Attended public schools in Sweden and night school in Portland, Oregon, in 1890, later attending
University of Oregon, Law Department. Admitted to bar at Salem, Oregon, Oc- tober 12, 1909. Employed by S. W. Eice as abstract clerk from September, 1889, to April, 1890, when The Title Guarantee & Trust Company purchased hia Abstract plant, and was retained by the Title Guarantee & Trust Company as ab- stractor and title examiner until 1907, at which time the Beceiver appointed for said company engaged his services as Manager of the Abstract Department, which position he held until 1908, when he became examiner of titles for the Title & Trust Company which position he holds at present. Served five years in the Oregon State Militia. Mem- ber of Masonic Fraternity, Eepublican Club. Eepublican.
EUGENE ASHWILL.
Eesidence 216 Fir street; office 216 Fir street, La Grande, Oregon. Born October 10, 1871, in Jasper County, Illinois. Son of Henry Clay and Jane M. (Perry) Ashwill. Graduated from Preparatory Department of Ottumwa University, Ottumwa, Kansas, in 1893. Graduated from Law Department of the State University of Kansas at Lawrence, Kansas, in 1897, with LL.B. degree. Prac- ticed law at Leavenworth, Kansas, until August, 1899, when he came to Oregon, lo- cated at La Grande as partner of L. A. Esteb. Dissolved partnership with Mr. Es- teb in 1901, and has since practiced alone. Eepublican.
ALFRED ANTHONY AYA.
Eesidence Alex- andra Court (53 Ella streeet). Of- fice 615-617 Henry building, Port- land. Born at Al- bert Lea, Minne- sota, June 15th, 1879. Son of Louis and Amelia (B r o n n e nkant) Aya. A 1 1 e n ded St. Joseph's Paro- chial School at Winona, Minneso- ta, from 1886 to summer of 1889. Eemoved to Ore- gon August, 1889. Attended St. Ma- ry's Academy at Eugene. Oregon, from the fall of that year to autumn, 1894. Beceived private instruction in Latin and English from 1894 to 1899. Entered the Law Department, University of Oregon, in
1899 and attended lectures for one year. In
1900 entered the Law Department of the Uni- versity of Washington, where he attended lectures for one year. In 1902, re-entered the University of Oregon, from which insti- tution he graduated with L.B. degree in 1903. Was admitted to the bar at Salem, Oregon, the same year, when he entered the office of C. M. Idleman, of Portland, where he re- mained until 1906, when he established him- self in his own office in the Fenton building. In 1906 was admitted to practice in the Federal Courts. In 1905 he became associated with the Deschutes Land Company (irriga- tion for Oregon, under Carey Act). In the fall of 1908 ,he discontinued the practice of law and devoted his entire time to the Des- chutes Land Company, The Canal Construc- tion Company and the La Pine Townsite Company. The latter two companies being interested in the same work, namely, the de- velopment of the Southern Deschutes Valley in Central Oregon. Member of the Waverly Golf Club, the Eepublican Club of Portland, Oregon Bar Association, Knights of Colum- bus Council, No. 678, of Portland, Chase Chapter, Phi Delta Phi. Eepublican.
SEID BACK, JR.
Eesidence, 320 Larrabee street; office, 308 First street, Portland, Oregon. Born De- cember 11, 1878, at Portland, Oregon. Son of Seid Back and Jung Shee. Married Janu- ary 25, 1900, to Mary Chan. In his early childhood, until he was thirteen years old, he was taught by private Chinese teachers, and in this way secured his Chinese education. From the time .he was thirteen until he was eighteen, he attended the Baptist Chinese Mission Night School, where he acquired the primary knowledge of the English Ian-
BIOGRAPHICAL
83
guage. From 1898 to 1900, he was a student at the Old Bishop Scott Academy in Port- land. From 1900 until October, 1903, he was actively engaged in mercantile business in partnership with his father, and from Octo- ber, 1903, to January, 1909, was in the em- ploy of the IT. S. Immigration Bureau, De- partment of Commerce and Labor, for the first three years as an interpreter and later as Chinese Interpreter at Large, which po- sition required much of his time in travelling from one station to another, where Chinese interpreters were stationed. In 1903-1906 and 1907 he attended the Law Department of the
1, 1895. Admitted to the bar of Oregon at Salem, June 1, 1895. Commenced the prac- tice of law at Hillsboro June 1, 1895; alone
University of Oregon, graduating in 1907, with LL.B. degree. In June of that year he was admitted to practice in Oregon, by the Oregon Supreme Court, and in July was ad- mitted to the District and Circuit Courts of the United States, for the District of Ore- gon. He bears the distinction of having been the first Chinese who was admitted to practice in the American Courts. He was the originator of the "American Born Chi- nese Association," which was organized in 1900, and still exists for the purpose of social, mental and physical advancement -of Ameri- can-born Chinese boys. Republican.
GEORGE ROBERT BAGLEY.
Residence, Hillsboro, Oregon; office, same. Born January 25, 1871, at Canton, Stark County, Ohio. Son of William and Sarah (Robinson) Bagley. Married April 20, 1897, to Olive M. Hanley. Attended public schools at Canton, Ohio, until 1885, when he came to Oregon, and attended district school at Leisyville, Oregon, for 18 months. Read law in office of Congressman Thomas H. Tongue, of Hillsboro, May 1, 1892, to June
from May 1, 1897, to September, 1898; in partnership with J. N. Brown, firm name Bagley & Brown; then alone to October 1, 1906; from then to date with W. G. Hare, under the firm name of Bagley & Hare. Mem- ber W. O. W. and K. of P. Fraternities. Republican.
HARRY TAYLOR BAGLEY.
Residence, Hillsboro, Oregon; office same. Born December 23, 1874, at Canton, Ohio. Son of William and Sarah (Robinson) Bag- ley. Married January 18, 1899, to Cora M. Rhea. Came to Oregon in 1885 and attended the county schools in Washington County, Oregon, and the public schools at Hillsboro until 1890, when he entered the High School at Portland. Studied law in the office of W. R. Ellis and T. R. Lyons, at Heppner. Admitted to the bar in July, 1897, and in August of that year was appointed Deputy District Attorney for Washington County, under District Attorney T. J. Cleeton, and served until August, 1900. From 1902 to 1908 served as Justice of the Peace in