# Oregon Historical Quarterly/Volume 4/History of the Preparation of the First Code of Oregon

THE QUARTERLY
OF THE
Oregon Historical Society.
[Entered at Portland, Oregon, Post Office as second-class matter.]
HISTORY OF THE PREPARATION OF THE FIRST CODE OF OREGON.
I am requested by the Oregon Bar Association to write a paper on "The Preparation and Adoption of the First Code."
Before writing about the actual preparation of the first code, I desire to say something about the confused and uncertain condition of statutory law in Oregon Territory, prior to 1853, and the reasons which induced the territorial legislature of 1852-53 to elect three commissioners to prepare a code of laws for Oregon Territory.
On June 27, 1844, the Provisional Government of Oregon, declared that "All the statute laws of Iowa Territory, passed at the first session of the legislative assembly of said territory, and not of a local character, and not incompatible with the conditions and circumstances of this country, shall be the law of this government, unless otherwise modified": Laws, 1843-49, p. 100.
​At the first session of the legislative assembly, held at Oregon City, two acts were passed by that body, which, owing to the construction placed upon them by the supreme court of the Territory, had a tendency to produce dissension and discord among the people of Oregon, which lasted for two or three years. One of these was "An act to provide for the selection of places for location and erection of the public buildings of the Territory of Oregon," passed February 1, 1851.
The other act was one which declared to be adopted, and in force, certain acts of the revised statutes of Iowa Territory published in 1843. The legislative assembly of Oregon by a single act adopted these acts of Iowa, designating them by their several titles, and the dates of their passage. This law was generally known as the "Chapman Code," owing to the fact that the bill was introduced by and its passage secured through the influence of Hon. W. W. Chapman, then a member of the legislative assembly.
Soon after these two acts were passed, their validity was questioned, especially that of the one which located the public buildings, and transferred the seat of government from Oregon City to Salem. Those who denied their validity did so on the ground that they contravened that clause of the organic act of August 14, 1848, section 6, which provides that "To avoid improper influences which may result from intermixing in one act such things as have no proper relation to each other; every act shall embrace but one object, and that shall be expressed in the title."
Legal proceedings were soon taken by persons interested in retaining the capital at Oregon City to declare the act of removal invalid. A suit brought for that purpose came on for hearing before the supreme court at Oregon City, in December, 1851. By law the judges of ​the district courts composed the supreme court of the territory. They were Thomas Nelson, Chief Justice, O. C. Pratt, and William Strong. Of these Nelson and Strong had been appointed by Presidents Fillmore and Taylor, respectively, while Pratt was holding over under an appointment of President Polk. The former were Whigs politically, while the latter was a Democrat. Judges Nelson and Strong convened at Oregon City, and opened the supreme court there. Judge Pratt went to Salem under the act which changed the seat of government, but without a quorum could not hold a session of the court. Judges Nelson and Strong then decided that the act of the legislative assembly providing for the selection of places for the location and erection of the public buildings, passed February 1, 1851, was void, because it contravened the organic law of August 14, 1848, as before stated. The opinions of the judges were never published in the Oregon Reports, for what reason I do not know. Possibly they were not filed with the supreme court. Judge Pratt claimed that this decision amounted to nothing because it was not made at the seat of government, as established by act of the legislative assembly, and in this opinion that body then assembled at Salem, readily concurred. This heated controversy about the location of the capital was, however, settled by a joint resolution of Congress, adopted May 4, 1852 (10 U. S. Statutes, 146). The first section legalized the act of the territorial legislature which located the public buildings, and the second section declared that the late session of the legislative assembly was held in conformity with the provisions of law. This, of course, ended all dispute about the location of the capital, but unhappily another controversy grew out of the construction placed by Judges Nelson and Strong upon the sixth section of the organic law of August 14, 1848. For the same reasons which ​they held the act for the location of the public buildings void, they also held the act of the legislative assembly, which adopted the revised statutes of Iowa, to be also invalid. In other words, these judges held that by adopting several distinct statutes of Iowa in one act, it necessarily embraced more than one object. Judge Pratt took a different view and held that the act of the legislative assembly embraced but one object, to wit, the adoption of a code of laws of the territory.
The result of these conflicting views of the judges was that in Judge Nelson's judicial district, composed of Clackamas, Marion, and Linn counties, and in Judge Strong's district, composed of Clatsop County and the counties north of the Columbia River, the Iowa Code of 1838, adopted by the Provisional Government, was held to be in force. Judge Pratt's district, composed of all the territory west of the Willamette River, included the counties of Washington, Yamhill, Polk, and Benton, and in this district the "Chapman Code" of the Revised Code of Iowa Statutes of 1843, was recognized as the law in force. In the district of Nelson and Strong, the lawyers would cite the law from the "Little Blue Book," as the volume of Statutes of Iowa of 1838 was called. In Judge Pratt's district the same lawyers would quote from the "Big Blue Book," as the Iowa Code of 1843 was called. There were but three or four copies of the little blue book in the territory, one of which was owned by Hon. A. E. Wait. The last time I saw it it was in the possession of Hon. Benton Killin. There were only two copies of the big blue book in Oregon and the statutes adopted by the Chapman Code were not published until the latter part of 1853, when they were printed by the territorial printer and bound in paper covers. A number of these printed copies were distributed among the several counties in the ​territory, but the uncertainty and doubt as to their validity made them of little value.
As I said before, Judge Pratt's views of this legal controversy coincided with those of the legislative assembly, then in session at Salem, and that body passed an act detaching the counties of Marion and Linn from the judicial district of Judge Nelson, leaving him only Clackamas County, in which he resided. In this act it was provided that the terms of court in Marion and Linn counties should commence one week earlier than they did under the old law. So Judge Pratt held court at Salem and Albany under the new law, and a week later in each county Judge Nelson went to Salem and Albany to hold the district court under the old law. He found, however, that Judge Pratt had preceded him, held the courts, and adjourned for the term. Judge Nelson finding that no business was prepared for hearing before him by the lawyers, and no jury summoned to try cases, returned somewhat disgusted to Oregon City, and was soon after relieved by the appointment of Hon. George H. Williams, as chief justice of the territory. He went back to his home in New York, where I believe he still lives [1894.]
I have referred to this almost forgotten history of the early days of the territorial government of Oregon to show the necessity that existed for a revision of the statutory laws of the territory. The uncertainty as to what laws were then in force, and the desire to be relieved from this condition of affairs was the principal reason which induced the legislative assembly to pass the act of January, 1853, providing for the election by that body of three commissioners to prepare a draft for a code of laws, to be submitted to the next legislature. In pursuance of this act, the legislative assembly elected the following commissioners in the order named: James K. ​Kelly, of Clackamas County, Reuben P. Boise, of Polk County, and Daniel R. Bigelow, of Thurston County.
Being first elected, I acted as chairman of the board, and notified the other commissioners of the time of our first meeting, which took place some time in March, 1853. We met in the council chamber of the legislative building, where all our subsequent meetings were held.
The first two or three days were occupied in discussing the general outline of our duties and the kind of code to be prepared. By common consent we agreed to accept the New York code of practice as the basis of our own, but with a notable exception in regard to proceedings in equity. Mr. Bigelow strongly insisted upon having no separate court of equity or of equity proceedings, but urged that we should follow the example of California in this respect. Mr. Boise and I differed from Mr. Bigelow. We contended that in the organic act of August 14, 1848, a separate system of equity proceedings was contemplated, wherein it is provided that "each district court or judge thereof shall appoint its clerk, who shall be the register in chancery": Act, August 14, 1848, § 9.
That it was so understood by the members of the first legislative assembly appears by the act of September 14, 1849, directing the mode of proceedings in chancery: See Hamilton Laws.
The system of equity jurisprudence and proceedings in equity adopted by the first code commissioners has now prevailed in Oregon for forty years, and during all that time I think has met the approbation of both bench and the bar.
Another thing agreed upon by the commissioners was that the code should be prepared so that it might be adopted by the legislative assembly in several acts instead of one, as was done in the Chapman Code in 1850. This was done in order to comply with the provisions of the ​organic law, which required that every act should embrace but one object.
These preliminaries being settled it was agreed that each commissioner should take one subject and prepare the draft for an act upon that particular branch of the law. During the preparation of these drafts the commissioners held frequent consultations, as often as once or twice a week, to discuss and agree upon the proper phraseology to be adopted, or arrangement of subject-matter in the proposed act.
It was agreed among us that Mr. Boise should prepare the act relating to executors and administrators, and also proceedings in the probate courts.
To Mr. Bigelow was assigned the duty of preparing the act relating to crimes and misdemeanors, and to regulate criminal proceedings. I undertook to prepare the code of civil procedure in actions at law and suits in equity.
These three subjects embraced the greater part of the laws which we undertook to prepare, and, after their completion, the remaining portion of our work was comparatively easy and brief. According to my recollection it was completed in the latter part of the summer or early fall of 1853. We prepared the draft for an entirely new code of statutory laws, with the single exception of the law relating to wills. This had been enacted by the legislative assembly in 1849, at its first session, the main features of it being a transcript from the Missouri statute on the same subject. As this was one of the first acts passed by our own legislation we adopted it in our draft with only a few verbal changes.
In the spring of 1853 Joseph G. Wilson, afterwards Judge Wilson of the supreme court, came to Oregon, and about May we employed him as our clerk to transcribe the drafts prepared by us, in order that they could be printed for the use of the legislative assembly at its ​next session in December. We caused about two hundred copies to be printed by Mr. Asahel Bush, the territorial printer, for that purpose. These were published in an unbound octavo volume, so that they could be readily separated into different bills for legislative use.
Soon after we entered upon the discharge of our duties as commissioners many of our political friends suggested the propriety of electing one or all of us members of the next legislative assembly, so that we could explain to the members or give any desired information to them concerning our work. We soon, however, learned that Congress had passed the act to organize the Territory of Washington, and this would necessarily prevent Mr. Bigelow from becoming a member of the Oregon legislative assembly.
Mr. Boise was nominated by the Democratic party as a candidate for member of the House of Representatives from Polk County. I was nominated by the same party as member of the Council, to fill a vacancy caused by the resignation of Hon. A. L. Lovejoy, who had recently been appointed Postal Agent for Oregon by President Pierce. Both Mr. Boise and myself were elected on the first Monday in June, 1853.
The legislative assembly met on the first Monday in December, and after the respective houses were organized Mr. Boise was appointed chairman of the Judiciary Committee in the lower house, while I was appointed chairman of the same committee in the upper branch of the legislature. Of course, the burden of seeing the code properly passed rested with him and myself. We divided the draft which the code commissioners had prepared into proper bills, according to the subject-matter of each. Some of these bills were introduced into the House of Representatives by Mr. Boise, and others of them into the Council by myself. All we had to do was simply to preface an enacting clause to the bill as it had been ​printed by order of the commissioners, and to insert a section at the end of each bill declaring that the act should be in force from and after the first of May next. The reason these acts were made to take effect on May 1, 1854, was that there was no possibility of having them printed before that time. Indeed, there were no facilities then existing in Oregon for either printing or binding the volume containing the statutes comprised in the first code. Mr. Bush, the territorial printer, made arrangements to have them printed and bound in New York. I do not now remember how many copies of the code were ordered to be printed, but certainly several hundred. About two hundred of these were sent to Oregon by way of Panama and arrived safely some time in the summer of 1854. The remaining copies of that edition were sent around Cape Horn by a sailing vessel. These never reached Oregon. They were either shipwrecked or so injured that they were worthless. At the next session of the legislative assembly, commencing in December, 1854, that body ordered a new edition to be printed to supply the place of the copies which were lost at sea, and that edition was printed in New York in 1855. It included the acts which were passed at that session with those of the code adopted at the preceding session of the legislature. This accounts for the printing of two editions—one in 1854 and another in 1855.
Between May 1, 1854, when the code took effect and the arrival of the first copies of the printed volume from New York, we were somewhat troubled for want of evidence of existing statutes, and the judges and lawyers used in the courts copies of the printed draft reported by the code commissioners. A few of these unbound volumes still remained and such changes as had been made by the legislature were noted in them. Some of the lawyers even went to the trouble of having them indexed so as to ​be more convenient for reference and citation. When, however, the first copies of the code arrived from New York these unbound copies of the code commissioners' draft were thrown aside. One of them I kept as a time-honored curiosity for many years.
Although the Oregon Code, as it was then termed, has since been revised two or three times to adapt it to a state, instead of a territorial government, yet in its main features it has remained substantially the same as when prepared by the first code commissioners and adopted by the legislative assembly of 1853-54.
The commissioners who prepared the first code of Oregon are all still living [1894], but nearly all the members of the legislature that adopted it are gone. Besides Judge Boise and myself I can think of no one of them who is now living.
JAMES K. KELLY.
September 25, 1894.