# Oregon Historical Quarterly/Volume 5/The Judiciary of Oregon

THE JUDICIARY OF OREGON
By Charles E. Wolverton.
The judiciary of this State as a system or department of government is of interesting parentage. It was horn of necessity, in primitive, organic times in the history of the Northwest and consisted of a single supreme judge, invested with none other than probate jurisdiction. It comprised also the executive department of government and antedated the legislative. It was above the law, for at that time the common law had not become our peculiar heritage and there was no statute book to control its action. It was truly a creature of circumstances. An event of no unusual moment if it were in these times, gave rise to its organization the death of a citizen leaving an estate to be administered. The organization was accomplished at a meeting of the settlers by the election of a judge, a clerk, and a high sheriff, all anterior to the formation or adoption of any provisional or organic law. It was resolved that until a code be adopted by a legislative committee for which provision was also made, the judge should be instructed to act according to the laws of the State of New York. A writer of early times asserts, however, that the instructions were to act "just as he pleased." Dr. Ira L. Babcock was the person chosen, and was thus made both ​judge and executive of the settlement. It is interesting to note that there was not a copy of the code of the State of New York at the time in the country, nor for a number of years afterward, but a copy of the Iowa code was brought in about two years later. The court, it is said, entered at once upon its duties and disposed of the estate to the enlire satisfaction of the community. The next step in formative development was the creation of a supreme court, a probate court, and justices' courts, the former to consist of a supreme judge and two justices of the peace, with a jurisdiction both appellate and original. Its original jurisdiction extended to cases of treason, felony, and breaches of the peace, and to civil cases where the sum claimed exceeded $50. To safeguard justice it was provided that no justice of the peace should assist in trying any case that was brought before the supreme court by appeal from his judgment. The idea was not lost sight of as it was later incorporated into the constitution of the State when the supreme court was composed of judges at nisi prius, inhibiting any one of them sitting as a trier of the cause in the first instance from taking part in the decision in the appellate jurisdiction. But, notwithstanding this injunction of obvious propriety, the criticism was sometimes indulged that the manner of organization gave rise to a bond of sympathy and fellow-feeling between the judges, the tendency of which was to affirm the action of the trial court, or, perhaps, rather to make a reversal more difficult than if the supreme court was entirely a distinct tribunal in its personnel as well as in its jurisdiction from that entertaining original cognizance. In the further development of government, by the organic law, the judicial power was vested in a supreme court and such inferior courts of law, equity, and arbitration as might from time to time be established by law. The supreme court consisted of one judge to be elected by the house of ​representatives with appellate jurisdiction, but with power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same. In its appellate capacity it was also accorded authority to decide upon and annul any laws enacted contrary to the provisions of the articles of the organic act, thus recognizing a fundamental principle which has now become firmly and unalterably established in American constitutional jurisprudence, that an act beyond the authority of the lawmaking body to adopt by reason of restrictions and limitations placed upon its powers, is void and without binding force and effect, and that the judiciary may rightfully so determine and declare. This state of initial construction was followed by the territorial government established by Congress, whereby the judicial power of the territory was vested in a supreme court, district courts, and others of less authority. The supreme court was composed of a chief justice and two associate justices who were authorized each in his own district to hold the district courts as well. A little more than a decade later the State was admitted into the Union under the present constitution creating the supreme court, to consist of four justices, with power in the legislature to enlarge the number to seven, the justices being charged with the duty of holding and presiding over the circuit courts, which are of general and original jurisdiction. By authority of another clause of the same organic law the election of supreme and circuit judges has been since provided for in distinct classes, with which system you are familiar. Under the constitution the powers of the government are divided into three separate and distinct but co-ordinate departments, the officials intrusted with the functions thereto being all elective, with the inhibitive injunction that no person charged with official duties under one of these departments shall exercise any of the ​functions of another except as expressly provided for in the constitution itself. Thus has been evolved by slow degrees the judiciary system as at present constituted, arising from a mere improvision to meet an exigency to a perfectly organized functionary with precisely defined powers and exact jurisdiction. Many judges have sat and presided in the tribunals thus organized, all with honor, I think, without exception, and not a few with signal ability and distinction, two of the most illustrious and well beloved of whom were members of the constitutional convention and are still in active business employment. I refer to our venerable and esteemed fellow citizens, Judges George H. Williams and Reuben P. Boise.
One of the central ideas of this arrangement of the departments of government, divorcing them from the contact and control of each other, was, no doubt, as it was with the framers of our Federal constitution, to establish an independent judiciary–"the firmest bulwark of freedom"–emancipated not only from the influence of its coordinate participators in government, but also from the merely political and partisan influences so often promotive of individuals to official position, and this by reason of the nature of the business with which it is intrusted to interpret and construe the laws adopted and promulgated by the coordinate branches and to determine their validity from a constitutional point of view, as well as to determine all manner of contest between litigants, including the State. In exercising this high function of construing enactments, the intendment of the legislature must govern, of course, and it is by giving heed to this cardinal principle that new policies of government are inaugurated and reforms set on foot, but it was not designed that the judiciary should look back of this into the general scramble for power and to permit the peculiar motives that may have induced individual action to influence its judgments. If ​it were otherwise it could hardly sit as an impartial arbiter in many cases of vital moment to the commonwealth and its citizens. It must not be understood by this that the court should be unmindful of the current of events that set in motion policies of government, for it is by giving heed to them that it is enabled to interpret the laws and ordinances of the lawmaking bodies and to administer justice intelligently. Alike with the other departments, the judiciary is subject to the influence of public opinion, that consensus of individual thought that moulds and gives caste to measures and political action in government. In epitome, it should not be swayed and tossed about by every shifting breese that is in one quarter to-day and in another to-morrow, but it should be ever sensitive of the gulf streams, the deep running currents, which are of the sea. Judgments can not .stand against public opinion any more than the promulgation of laws and executive decrees, for they will in some way be avoided and their force as precedents destroyed. A peculiarly striking incident of the kind is the decision in the Dred Scott case, which in its political aspects has been accounted vulnerable and has been wholly disregarded. The most searching yet courteous criticism of this case was one made by the illustrious patriot and citizen whose name we honor on this occasion. It has gone down in history and was so skillful and masterly as to defy successful disputation. You will readily recall the political conditions then prevalent. Franklin Pierce was the outgoing and James Buchanan the incoming president, both of whom had referred in public utterances to the forthcoming decision of the supreme court; Roger B. Taney, who rendered the prevailing opinion, was chief justice; and Stephen A. Douglas, the champion of the Nebraska Doctrine. After putting numerous questions touching the action of these men and the delay in the ​long looked-for decision, Mr. Lincoln likened these things unto "the cautious patting and petting of a spirited horse preparatory to mounting him when it is dreaded that he may give the rider a fall." Then in his inimitable style he says: "We can not absolutely know that all these exact adaptations are the result of preconcert, but when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places, and by different workmen Stephen, Franklin, Roger, and James, for instance, and when we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortices exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few not omitting even scaffolding or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in in such a case, we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first blow was struck."
Personally, I have felt that the criticism was unjust to the distinguished chief justice, whose purity of character and whose uprightness and integrity as an individual and as a jurist was beyond reproach, as it leaves the impress that he had prejudged the cause. Such a thing was not to be thought of and surely was not intended by the criticism, but the elucidation was at once so felicitous and apropos as to lead to the utter rout and vanquish ment of Stephen and Franklin and James.
Coming back to our own State judiciary, it is not to be denied that at times there has been cause for pertinent criticism, but these have been rare, and from the earliest organization it has merited and received the respect, good ​will, and esteem of the people of the commonwealth, whose hands are the support and mainstay of all institutions of a republican form of government, and this is the highest encomium that can come to a public functionary. It has consistently maintained a commendable independence as a department in the State government, in both the peculiar and the broad sense in which it was designed and in suitable accord with the genius, the spirit, and disposition of the times, and it is earnestly to be hoped that it will continue to grow in grace and in the confidence, favor, and esteem of every citizen from the humblest to the greatest of this, our beloved commonwealth. Such, I am assured, will be its conscientious endeavor to be signified by its good works.