These pages are © Copyright 2001-2007, by Julie Kidd, all rights reserved.
Please report any broken links, or other concerns, to the webmaster.
Please respect copyright on and off the Internet.
THE BENCH AND BAR.
THE origin and development of the Courts and the law in this community afford a striking illustration of the adaptability of the American people to the necessities of their condition, and their natural aptitude for State building and self government. Would the scope of our work permit, it would be interesting and instructive to follow in detail the various steps taken by the pioneers of Oregon in creating a civil polity for themselves without adventitious aid or the supervising control of a sovereign government, and to show how the diverse and often conflicting influences of religion, nationality, heredity and individual environments were blended and coalesced into a practical system of laws. But our present purpose is to describe the Bench and Bar of Portland, and reference to the growth of the legal and constitutional organism of the State is necessary only as it shows the conditions under which the Courts and the law in the city are to be viewed.
The operation of the laws of Canada was, by Act of Parliament at an early day, extended to include the English subjects on the Pacific Coast, and three Justices of the Peace were commissioned, one [page 309] of whom, James Douglas,1 afterward Sir James Douglas and Governor of the Hudson's Bay interests for a short time before the United States extended its jurisdiction over the Territory, resided at Vancouver and exercised his duties as Justice there until the provisional government was organized.2
The protestant missionaries, likewise, appointed a Justice of the Peace, but the cases that came before these officers for adjudication were rare and of little importance. The settlers were so few in number and so widely scattered that Courts were not often needed. With these exceptions there was no attempt to organize a judiciary in the Northwest until in 1841.
At that time the American settlers in the Willamette Valley were anxious that the government of the United States extend its sovereignty over the Oregon country and establish a system of local laws and government, but to this the sentiment of the French and Canadian settlers was more or less openly hostile. Ewing Young, who had been an active and prominent figure in the settlement and had, after a life of adventure and roving, accumulated a small estate, chiefly by a successful enterprise in driving from California a herd of cattle, died at his home near the present site of the town of Gervais, and the advocates of a local government found a convenient pretext for the consummation of their plans in the absence of probate courts and laws to regulate the administration of his estate. A meeting was held by the settlers, after the funeral, at Young's house, which, after appointing a committee to draft a constitution and a code of laws and recommending the creation of certain offices, and, in committee of the whole, nominating persons for those offices, adjourned until the next day. In accordance with the adjournment a full meeting was held at the American Mission House on the 18th day of February, 1841, and, among other proceedings had, I. L. Babcock was elected Supreme Judge, with probate powers. [page 310]
The peculiar and comical feature of this proceeding was in the adoption of a resolution at this meeting instructing the Supreme Judge to act according to the laws of the State of New York until a code of laws should be adopted by the community. One historian affirms that at the time there was not a copy of the New York Code in the settlement,3 and certainly there was not more than one.
The judge was a physician, connected with the Methodist Mission, who had perhaps never read a law book. By some adverse fate the projected government was never finally organized as intended, but Dr. Babcock was subsequently elected a Circuit Judge, and, at the time the first houses were building in Portland, he was holding court in the Clackamas district and occasionally in the district which included the present county of Multnomah.4 Another attempt at forming a provisional government was made in 1843, with the result that an Organic Law, somewhat rudely framed upon the ground plan of the Ordinance of 1787, was adopted by the people at a public meeting held July 5, 1843.
In the meantime, while taking the preliminary steps toward organization and the adoption of laws, at a meeting held on the 2d day of May, 1843, at Champoeg, A. E. Wilson,5 was selected to act as Supreme Judge, with probate powers, and a number of magistrates were elected. By the adoption of the judiciary system proposed at the same meeting by the legislative committee, these officers were continued in office until their successors should be elected, and a general election was provided for on the 2d day of May, 1844.
The territory was organized into four districts for Judicial purposes, the First District, to be called the Tuality District, [page 311] comprised all the country south of the northern boundary of the United States, west of the Willamette or Multnomah River, north of the Yamhill River and east of the Pacific Ocean.
This arrangement, however, was altered by the first Legislature that met pursuant to the provisions of the organic act, in June, 1844, and the whole fabric of government was remodeled. So far as the judiciary was concerned the change was chiefly in vesting the judicial power in Circuit Courts and Justices of the Peace, and providing for the election of one Circuit Judge, with probate powers, whose duty it should be to hold two terms of Court annually in each county. Justices of the Peace and other officers were to be elected, and their duties were defined.
Babcock, who had been elected Circuit Judge in May, 1844, defeating by a considerable majority, J. W. Nesmith, P. H. Burnett, P. G. Stewart, Osborn Russell and O. Johnson, resigned the office November 11, 1844. He was succeeded by J. W. Nesmith, who held his first term in April, 1845, at Oregon City.
The Courts were now fully and properly organized, but there were no suits of importance at this period. Almost all the cases were heard before the Justices of the Peace and no record remains. The earliest record of any case in the Supreme Court arose from the district in which Portland was included, between two farmers who came to the territory with the large immigration of 1843, and located in the prairies of Yamhill County. It seems that among the cattle brought overland in that year in great numbers by the settlers, Ninevah Ford and Abi Smith each had several head, but when the valley was reached these had dwindled down in number, by the [page 312] hardships and short rations of the journey, and both Ford and Smith claimed the ownership of a certain pair of oxen that remained. Ford had the cattle and Smith brought suit for their possession and upon trial before two Justices of the Peace, sitting as a Supreme Court, in April, 1844, a verdict was returned by the jury in favor of the plaintiff.
The Legislature that was elected in 1845, under this new scheme of government, at once appointed a committee again to revise the Organic Law, and then it was that the fundamental act which is generally referred to as creating the Provisional Government, a model of statecraft, and upon which the State Constitution of Oregon was afterwards constructed, was prepared, and subsequently ratified by the people at an election held July 26, 1845.
By the eighth section of Article II of this instrument, the judicial power was vested in the Supreme Court and in such inferior Courts as might, from time to time, be established by law. The Supreme Court, consisting of one judge, to be elected by the House of Representatives for the term of four years, was given appellate jurisdiction only, with general superintending control over all inferior Courts of law, and power to issue certain original remedial writs and to hear and determine the same. The Legislature might also provide for giving the Supreme Court original jurisdiction in criminal cases.
The Legislature elected Nathaniel Ford, of Yamhill County, Supreme Judge at its meeting, August 9, 1845, and passed various as creating district, probate, criminal and justice courts, electing B. O. Tucker, H. Higgins and Wm. Burris, District Judges of Tuality County. Nathaniel Ford declined to accept the office of Supreme Judge and the House elected in his stead Peter H. Burnett.
Burnett had come to Oregon in 1843 from Missouri, where he had been District Attorney, and with General M. M. McCarver, afterward Speaker of the House of Representatives, had located and laid out the town of Linnton, on the Willamette, and lived there in the early part of 1844, but in May, 1844, he removed with his family to a farm in Tualatin Plains near Hillsboro. He was one of the [page 313] Legislative Committee in 1844, and again in 1848.6 Burnett was perhaps the ablest lawyer of this period of Oregon History,7 but as he says,8 there was nothing to do in his profession until some time after his arrival in Oregon and he was therefore compelled to become a farmer. He held the office of Supreme Judge until December 29, 1846, when he resigned the office.9 Elected to the Legislature of the Provisional Government, in 1848, he again resigned, this time to go to California, where he received a commission from President Polk; dated August 14, 1848, as one of the Justices of the Supreme Court of Oregon, under the Territorial organization. This commission he declined, and in August, 1849, was elected Judge or Minister of the Superior Tribunal of California.10 On the organization of that State, he was elected Governor, and subsequently became a banker at San Francisco.
When Judge Burnett opened Court, June 2, 1846, at Oregon City, three attorneys were admitted to the bar:11 W. G. T. Vault, A. L. Lovejoy and Cyrus Olney.12 These were the first attorneys regularly admitted to practice in the Supreme Court in Oregon, though others were in the Territory and had practiced before the inferior Courts, and of these three, two of them, A. L. Lovejoy and Cyrus Olney are identified in no slight degree with the history of the Bench and Bar of Portland.
Both Pettygrove and Lovejoy, the original Portlanders, were versed in the law. Pettygrove was a merchant at Oregon City and served as Judge of the District Court, in the Clackamas District in 1844 and 1845, resigning his office in December, 1845.13 Lovejoy was one of the first lawyers that came to the territory, and from the [page 314] first his name is associated with public affairs. He was a very positive character, firm and often extreme in his opinions, but was a man of many good qualities. He lived but a brief time at Portland, though he always took an interest in its affairs. In his earlier years in Oregon, particularly in the days of the provisional government, he was an active practitioner, and frequently served as Prosecuting Attorney14 and as a member of the Legislature, and was the first regular Democratic candidate for Governor of Oregon under the provisional government, but as he grew older he devoted himself to the quiet of farm life near Oregon City, where he died 1882. A sketch of his connection with the founding of Portland is presented in a preceding chapter.
The first business before the Supreme Court, and the first written opinion of which there is any record, was in reference to an application of James B. Stephens for a license to keep a ferry across the Willamette at Portland, which was denied on the ground that the statute conferring the power to grant licenses upon the Supreme Court was unconstitutional as in contravention of the provisions of the Organic Law which gave the Court appellate jurisdiction only, except in criminal cases. The only other business done at this term was in a case wherein John H. Couch, of Portland, was plaintiff.
After Judge Burnett resigned, J. Quinn Thornton was appointed Supreme Judge, Feb. 9, 1847, and held his first term of Court at Oregon City on the 7th day of June, 1847. He was succeeded again, after holding two terms, by Columbia Lancaster, who also held two terms, the June and September terms in 1848, at Oregon City.
The Legislative committee that met at Willamette in May, 1843, to prepare an Organic Law, at their meeting, May 19, provided for the appointment of a committee of three, to prepare and arrange the business done at that session and revise the laws of Iowa.15 This was the first suggestion of the use of the Iowa Laws in Oregon. The committee having reported the laws as revised by them, they were adopted with some modifications at a subsequent meeting.16 The [page 315] same body also adopted a resolution to purchase several law books of James O'Neil to be the property of the community, and though it is not positively known, it is believed that among these books was the only volume of the Iowa Code then in the colony.17 At any rate, at the public meeting of the people July 5, 1843, this report of the Legislative committee was adopted, and it was, "Resolved, That the following portions of the laws of Iowa, as laid down in the Statute Laws of Iowa, enacted at the first session of the Legislative Assembly of said Territory, held at Burlington, A. D., 1838-39; published by authority, DuBuque, Bussel and Reeves, printers, 1839, certified to be a correct copy by Wm. B. Conway, Secretary of Iowa Territory, be adopted as the laws of this Territory; viz: etc."
The book was brought to Oregon in 1843; it was called the "blue book," and was bound in blue boards. On the 27th of June, 1844, the Legislative Committee adopted an Act "Regulating the Executive Power, the Judiciary and for Other Purposes," of which Art. III, Sec. 1, was as follows: "Sec. 1. 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 condition and circumstances of the country shall be the law of the government, unless otherwise modified; and the Common Law of England and principles of equity, not modified by the Statutes of Iowa or of this government and not incompatible with its principles, shall constitute a part of the law of the land."
After the Organic Law had been remodeled in 1845, and the Legislature convened in August of that year, it was deemed advisable to re-enact the Iowa Laws, lest any doubt of their binding force under the new provisional government be entertained, and accordingly a bill for that purpose was passed, August 12, 1845.18 At this time there was no printing press in Oregon, and though many laws were enacted it is not to be presumed that they were very widely promulgated, and perhaps the maxim that ignorance of the law excuses no one, would, under the circumstances, prove severe [page 316] application.19 But, again, on the organization of the Territory in 1849, under the laws of the United States, the same question as to how far these statutes were the law of the Territory, was raised, and in order to settle any doubts as to the law, a similar statute was enacted by the Territorial Legislature at its first session, September 29, 1849. In the meantime the addition of 1843 of the Code of Iowa had found its way to Oregon, which also was bound in blue board covers. This book now became familiarly known as the "Blue Book" and the former edition as the "Little Blue Book.'20 The act, adopting this edition, provided for the substitution of the word "Oregon" for" Iowa" wherever it occurred in the Iowa Code of 1843, and directed21 that the laws with certain changes "be indexed and published after the manner of the Iowa Laws of the date aforesaid, to which shall be prefixed the Declaration of Independence, the Constitution of the United States, the Ordinance of 1787, the Constitution of the Provisional Government of Oregon, and the Organic Laws of Oregon Territory."22 [page 317]
The peculiar status of the Courts at this period, is expressed by Judge Deady, in the case of Lownsdale vs. City of Portland, decided in 1861, in the following language, which was afterward quoted with approval by the Supreme Court of the United States in the case of Stark vs. Starrs
"It is well known that at the time of the organization of Oregon Territory, an anomolous state of things existed here. The country was extensively settled and the people were living under an independent government established by themselves. They were a community in the full sense of the word, engaged in agriculture, trade, commerce and the mechanic arts; had built towns, opened and improved farms, established highways, passed revenue laws and collected taxes, made war and concluded peace."
In the case of Baldro vs. Tolmie (1 Or. Rep. 178), the territorial Supreme Court, after the provisional government was superceded, speaking through Williams, C. J., said: "Confessedly the provisional government of this territory was a government de facto, and if it be [page 318] admitted that governments derive their `just powers from the consent of the governed,' then it was a government de jure. Emigrants who first settled Oregon, upon their arrival here, were without any political organization to protect themselves from foes without or to preserve peace within; and, therefore, self-preservation constrained them to establish a system of self-government. Congress knowing their necessities and withholding the customary provisions for such a case, tacitly acquiesced in the action of the people, and, on the fourteenth of August, 1848, expressly recognized its correctness and validity. No reason can be imagined for holding that the people of Oregon, in 1844, had no right to make such laws as their wants required; for where the functions of government have not been assumed or exercised by any other competent authority, it cannot be denied that such a power is inherent in the inhabitants of any country, isolated and separated as Oregon was from all other communities of civilized men. Some effort has been made to assimilate the laws in question to mere neighborhood agreements, but the argument seems to apply with equal force to the acts of all governments established by the people."
Thus it will be seen that the infant city of Portland, though not under the protection of the laws of the United States in its earlier years, was, nevertheless, a part of an organized and existing political autonomy, and its inhabitants were bound by an intelligent system of laws which were valid and authoritative and administered by a regularly constituted tribunal.
Within the limits of the settlement at Portland there were no Courts during the time of the provisional government. There were several justices of the peace within the Tuality District, but they resided in the level country west of the Portland hills and far south-ward toward the Yamhill river. But in December, 1845, an act was [page 319] adopted by the legislature providing for the election of an additional justice of the peace in the Eastern District of the Tuality District, and accordingly A. H. Prior was elected and received his commission on the 7th day of October, 1846, and he may be said to be the first judicial officer at Portland, for he afterwards held his office at that place in his precinct.24
In 1849, Portland then having but one hundred inhabitants, an association was formed to erect a meeting house, and this building was used for several years afterward for a court house and also as a school house and a place for religious meetings.
When the city was incorporated, in January, 1851, the office of recorder25 was created and this officer was given the same jurisdiction as a justice of the peace as to offences committed within the city, and also exclusive jurisdiction in cases of violation of city ordinances, and jurisdiction as a justice of the peace in the collection of debts. A city attorney26 was also provided for by the amended charter of 1852.27 By an amendment of October 28, 1870, the office of recorder was abolished and the police judge was made the judicial officer of the corporation, and his Court was named the Police Court.28 He was given substantially the same jurisdiction that had been exercised by the recorders.29 [page 320]
The city was also divided into precincts, in each of which justices of the peace were elected. At first these were the North and South Portland precincts; they were afterward subdivided and extended, until, for a long time, the city supported six of these Courts, besides the Police Court and the Courts of Record; but in 1885 the legislature attempted to cure what had long been a public nuisance, by abolishing a number of these useless tribunals and returning to the original plan of having but two precincts, called the North and South Portland precincts respectively.30
As the Territory of Oregon came into existence, March 3, 1849, when the new Governor, Joseph Lane, arrived at Oregon City and issued his proclamation to that effect, the District and Supreme Courts tinder the provisional government ceased their functions, and new judges of the Supreme Court, appointed by the President pursuant to the Act of Congress, soon after came to Oregon. The first Judges were Wm. P. Bryant, Chief Justice; Peter G. Burnett and James Turney. Turney did not accept and Orville C. Pratt was substituted. Judge Burnett, as we have said, had already gone to California, and declined the office, and William Strong was appointed in his stead in 1850. In that year Chief Justice Bryant also resigned, and Thomas Nelson was appointed in his place.
The legislature provided for a special term of the Supreme Court by an Act passed August 28, 1849, and accordingly two days afterward, Judges Bryant and Pratt opened the term at Oregon City. [page 321] There was only one case before the Court, which was decided, and an order was entered transferring the causes remaining undetermined in the Supreme Court of the late provisional government, and another order directing the Marshal to procure a seal and to provide the necessary stationery and a room at the Capital of the Territory for a court room.
The legislature had previously (July, 1849), changed the name of the Tualitin County, or Tualitin District as it had been called in earlier times,31 to Washington County. Hillsboro was then, as now, the county seat, and the county included at that time the present County of Multnomah, which was segregated in 1854, when Portland became the county seat.
Until this latter event, almost all the law business of Portland was disposed of at Hillsboro. Judge Pratt, who was assigned to the district which included Washington county, was an able and upright judge. He was a tall and dignified man, rather elegant in his tastes and somewhat precise. He was a thoroughly educated lawyer, and although he engaged in the factious political controversies of the time, he was generally respected. On one occasion, Judge A. E. Wait, then practicing at Oregon City, presented a proposition in a cause pending before Judge Pratt at Hillsboro, which the latter thought bad law. "You need not argue that, Mr. Wait," said the Court, "it is not the law, and I don't want to hear it," "But, your Honor, I have here an authority which sustains me, and which I [page 322]would like to read." "You need not read it, it is bad law if it sustains your proposition, and I will not hear it. You may sit down. I will take the case under advisement on the other questions presented, and will announce my decision this afternoon at the opening of Court." Other business was taken up by the Court and it soon became Wait's duty to argue another case. After stating his position and presenting his argument, Wait quietly proceeded to read his authority bearing on the point in controversy, and among other cases he read the one which the Court had previously refused to hear, although it did not relate to the matter then in hand. Judge Pratt leaned forward and was on the point of administering a reprimand on the presumptuous attorney, but, evidently thinking better of it, settled back and listened without comment until the case was read, when Wait turned down the leaf and laid the book on the Judge's desk and proceeded with his argument. At noon Pratt took the book with him to his dinner table, and on resuming the Bench, announced his decision in favor of Wait, citing the case which had been forced upon his attention.
Judge Pratt on another occasion disbarred Col. W. W. Chapman because the latter filed an affidavit for his client, asking a change of venue on the ground that the Judge was biased and prejudiced against his client. Chapman drew the affidavit in general terms alleging prejudice, but the motion was disallowed on the ground that the affidavit was insufficient; whereupon an affidavit was filed which alleged the facts in detail relied upon to show prejudice. Judge Pratt called Chapman to account at once, and required him to show cause why his name should not be stricken from the roll. The result was that a judgment was rendered suspending Chapman from practice for two years and he was ordered imprisoned. A writ of error was however obtained from the Supreme Court, staying the proceedings before any real attempt was made to enforce Judge Pratt's order. At the December term, 1851, of the Supreme Court, at the opening of the Court, a motion was made for the admission of Chapman as an attorney of that Court; the objection was made that he had been suspended by Judge Pratt, but after taking the matter under consideration for a day or two, he was allowed to take the [page 323] oath and sign the roll as an attorney of that Court and in the meantime, while the matter was under consideration, he was permitted to argue a case before the Court.
Judge Pratt's term expired in 1852, and he opened a law office at Multnomah City, opposite Oregon City, for a while, but after a short time removed to California, where he has sustained the promise of his career in Oregon, and his reputation and his fortune has grown with his years.
Judge Nelson and Judge Bryant never held Court in Washington County, but the Portland lawyers were often before them when on the Circuit as well as when holding Supreme; Court. A lawyer's business in those days, and for many years after Oregon had advanced to the dignity of Statehood, required him to "ride the Circuit" and to follow the Court in its peregrinations from county to county. So that, in a sense, the early history of the Bench and Bar of Portland is closely identified with that of the whole State. There were few Court Houses, and the accommodations at the hotels were often rude. One term of Court at Eugene City, at about this time, was held under an umbrageous oak tree. The mode of travel was upon horseback, and it was usual to stop at night at farm houses on the way. At the county seats, the lawyers, judges, litigants and witnesses boarded around at different houses, and as there were few public amusements, the evenings were generally spent in fireside conversations, where the time passed very pleasantly with jokes and stories. Sometimes, however, the rush of business during term time demanded midnight lucubrations, as was the case with Judge Wait on one occasion at Hillsboro. Amory Holbrook had been retained in an important case against some of the owners of the town site of Portland regarding a steamship, for some San Francisco people, and desiring to go East, employed Wait to take charge of the case in his absence. Wait was: confronted by all the lawyers of note in the Territory. There were Chapman & Mayre, Hamilton & Stark, Lansing Stout, Boise & Campbell, David Logan and others from Portland, and Columbia Lancaster from Multnomah City, all interposing pleas and demurrers and raising every objection [page 324] that ingenuity could suggest. Poor Wait was almost submerged, but by dint of working all night, he was ready each morning for his antagonists and managed to hold his own.
Governor Lane, by proclamation, established three Judicial Districts, and assigned Judge Bryant to one, consisting of Vancouver and the counties immediately south of the Columbia, and Judge Pratt to the district called the Second District, which comprised the remaining counties in the Willamette Valley. There was no Judge in the territory at that time to sit in the Third District, which included the remainder of what is now the State of Washington. Judge Bryant was but five months in the territory. He returned to the East and resigned Jan. 1, 1851; and for nearly two years Judge Pratt remained the only Judge in the Court in Oregon.32
Judge William Strong arrived by water in August, 1850, and Judge Nelson in April, 1851. On the same ship with Strong came General Edward Hamilton, territorial secretary, who subsequently took up his residence at Portland and became an active member of the bar there. He was associated for some years with Benjamin Stark, under the firm name, Hamilton & Stark.
Judge Strong's district was the Third and was wholly included within the present State of Washington, and he took up his residence at Cathlamet on the Columbia. Chief Justice Thomas Nelson had the first district, but when the controversy about the "Steamboat Code" and the location of the State capitol was at its [page 325] height, his district was cut down by the legislature to Clackamas county, only. He was a man of rather small stature, mild in manners, but firm in his opinions, and prompt and accurate in his decisions on questions of law. He was thoroughly educated, having graduated at Williams college and taken a course of medical lectures and spent some time in European travel before adopting the law as his profession.
At this time the administration of justice by the Courts was much interfered with by the violent political controversies and partisan warfare that divided the judges as well as the body of the people. Amory Holbrook, of Portland, the District Attorney of the Second District, was absent in the "States," and the Legislature essayed to appoint Reuben P. Boise, afterward a resident of Portland, in his place, but Chief Justice Nelson refused to recognize the authority of the Legislature in that respect and appointed S. B. Mayre, also of Portland, to act in that capacity at the Spring Term, 1852. On the expiration of Judge Pratt's term, in the Autumn of that year, C. F. Train was appointed in his stead by the President, but he never came to Oregon.33
With a change of the administration at Washington, came a change in the offices of the Territory of Oregon, and instead of the existing judges, Pratt was appointed Chief Justice, with Matthew P. Deady and Cyrus Olney as associates. Pratt's name was withdrawn and that of George H. Williams was substituted. The new Judges held one term of Court, when Deady was removed and Obadiah B. McFadden was appointed in his stead, but he was removed to the new Territory of Washington almost immediately after, and Judge Deady was reinstated.34 His was the Southern Oregon District. Williams had that east of the Willamette, and Olney, west of that river. Each of these Judges held Court at different times at Portland, [page 326] for Multnomah County was now organized by the Legislature of 1854-55, and each of them has been a prominent figure at the Bench and Bar of Portland.
In 1853, the Legislature provided for two terms of the Supreme Court annually, to be held at Salem on the first Monday of December and at Portland on the first Monday of June. The first term of the Supreme Court held by the new Judges was at Portland. Judges Deady and Olney repaired thither and opened Court on the 20th day of June, 1853. The Clerk, Allan P. Millar, was absent on a trip to to the East, and Ralph Wilcox35 was appointed Clerk until further order, and, as the records, books and papers of the Court were not at hand, an order signed "C. Olney " and "M. P. Deady," without official designation, was carried by J. W. Nesmith, the Marshal, to Allan M. Seymour, the Deputy Clerk under Millar, at Oregon City, directing him to turn over the records. The next day the Marshal returned without the books and with a report that Seymour refused to produce them, whereupon an order of attachment was issued and Seymour was brought, to Portland in the custody of Nesmith. Alexander Campbell filed interrogatories as Prosecuting Attorney, in behalf of the Territory, and Amory Holbrook attempted to be heard as Counsel for the prisoner, but the Court refused to hear him until the books were produced. Seymour said he was willing to deliver them to Millar's successor, on receiving a proper receipt upon being duly ordered to do so, but as they were in his custody and he had been ordered by Millar to take this course, he should decline until the proper receipt was tendered him. Seymour was ordered confined in the County jail, and attempted to procure his release [page 327] by habeas corpus, but Olney, before whom the application for the writ had been made in chambers, adjourned the hearing to the open Court, and on the return of the writ ordered him to jail, whereupon he agreed to surrender the records and go with the Marshal to the place where they were concealed. The Marshal brought the books to Court and the whole matter was dropped on Seymour's paying the costs, it appearing that he was acting under advice of Millar's sureties, and the Court taking into consideration his youth and his good intention. A number of appeal cases were heard at this term of Court, many being from Portland, as the law business there was already assuming importance, and among other business was the admission to the Bar of Benjamin Stark, Esq.36
After the organization of Multnomah county, with Portland as the county seat, law business there increased greatly in volume and importance. The growth of the population and the business of the place accomplished this result. The first term of the District Court there was held by Judge Olney in a wooden building at the corner of Front and Salmon streets, known as Nos. 161 and 163 Front street, a small and ill-constructed building which was rented of Coleman Barrell, until, 1867, when the present Court House was erected. The term was opened April 16, 1855, though as early as the 9th of February previous some confessions of judgment had been entered by the clerk in two cases against John M. Breck and William Ogden, in favor of Thomas F. Scott and John McCarty respectively. The first case called by Judge Olney was the case of Thomas V. Smith against William N. Horton; Messrs. Logan and Chinn appeared as attorneys for the plaintiff and asked for a non-suit, which was granted. The same disposition was made of a number [page 328] of other cases, in some of which the same attorneys appeared and in others, Campbell & Farrar appeared. On the second day of the term defaults were entered in a large number of cases, the attorneys who appeared, besides those already mentioned, being Hamilton, Stark, McEwan, Wait and Marquam. A jury case was tried, William W. Baker, plaintiff, vs. George J. Walters, defendant, the verdict being returned in favor of the defendant. At the same term a number of cases for retailing spirituous liquors on Sunday were disposed of and one case wherein the defendant was accused of selling a gun to an Indian. Peter Espelding was admitted to citizenship.37
The first County Court in Multnomah County began its term January 17, 1855. G. W. Vaughn was County Judge, and Ainslie R. Scott and James Bybee, Commissioners.38 When the State was organized, the first term of the County Court was opened on the 4th day of July, 1859, with Hon. E. Hamilton as County Judge.
In addition to the leading members of the Portland Bar at this period, already mentioned, were W. W. Chapman and Amory Holbrook. The first of these to come to Portland was W. W. Chapman, who still lives, the oldest member of the Bar of the city. Frequent mention of him has been made in the preceding pages. Of late years he has not been engaged in active practice, but at the period of which we now speak he was prominent not only in legal affairs but in political as well. At the Bar, he was ever polite and dignified, a gentleman of the old school.
Holbrook, a young man of medium height, fair and good looking, came to Oregon in March, 1849, and was at this time in his prime. His abilities as an orator were of no mean order and his quick [page 329] preception and ready knowledge of law combined to make him one of the foremost figures of the times. He was a member of the Legislature afterwards and a candidate for United States Senator, but his temperment, volatile and variable, led him to habits that interfered with the career of more than one of the brilliant lights of the Bar in these earlier days of its history. Moreover, he was noted for a certain biting humor which gave vent to numerous sharp sayings, which, though repeated with enjoyment by those who were not the subjects of his caustic sarcasm, made bitter enemies of others. His abilities as a lawyer never waned until his death at middle age cut him off.
David Logan was perhaps the greatest jury lawyer of his time. Like Holbrook, he had, as a contemporary has remarked, but one enemy, and that was himself. He was born in 1824 at Springfield, Illinois, and was a son of an eminent lawyer and judge of the Supreme Court of that State. He came to Oregon in 1850, and settled in Lafayette but removed to Portland soon after. He was defeated as a candidate for the Legislature, in 1851. He served as a member in 1854, and ran unsuccessfully as a candidate for Congress in 1860 and again in 1868. He was a member of the Constitutional Convention. Logan had a large practice and was very popular. He was shrewd and sharp-witted and for twenty years held front rank at the Portland Bar. He was of medium size, light complexion, and had curly hair and a light mustache.
Another lawyer of this period worthy of special mention is Alexander Campbell, who was particularly well drilled in the principles of common law. He placed great dependence upon his books, carefully preparing his cases, and appearing in Court with an armfull of authorities on every occasion. He removed to California, after a few years in Oregon, and became a judge of the Supreme Court of that State and a leading member of the San Francisco Bar.
Mark A. Chinn and W. H. Farrar were bright men, and each was a partner of Logan for a time. Simon B. Mayre, a partner of Chapman in those days, had a good name. Benjamin Stark was in partnership with Hamilton, under the firm name, Hamilton & Stark for some time, as has already been mentioned. He was a member of [page 330] the legislature in 1853 and 1860 and was appointed United States Senator to fill the vacancy caused by the death of E. D. Baker, in 1861. He was accused of disloyal sentiments and some delay was occasioned before he took the oath, but was finally admitted. As one of the owners of the townsite and a wealthy man he attained some prominence, but for many years has resided in the State of Connecticut.
P. A. Marquam was also one of the first members of the bar of Portland, and served as county judge for some years. Of late years he has retired from practice, devoting himself to his private business affairs, which he has managed with success.
Judge Olney made Portland his place of residence, and though a somewhat peculiar man he was highly respected and was a modest and unassuming gentleman. He had a noticeable faculty for taking up all the circumstances and details of a case and arranging them in logical sequence into a persuasive argument. He was a member of the State Constitutional Convention, and later he removed to Clatsop county, and represented his district in the legislature in 1864. Gradually he retired from active legal practice, spending his last days quietly upon his farm. George H. Williams and he had been Circuit Judges in adjoining circuits in Iowa, where both were elected at the first State election of that State in 1847. Olney came to Oregon, where he was appointed by President Pierce, Associate Justice of the Supreme Court; and Williams, on being likewise appointed Chief Justice, followed him a few months after. They remained close friends until the death of Olney, and continued on the bench together until 1858, when both resigned.
During this period the Supreme Court, consisting of these two judges and Mathew P. Deady, passed upon many interesting and important questions, and by the decisions made in the District Courts as well as when the judges sat together as a Supreme Court, the practice was settled and many serious questions were set at rest. The cases that affected the town site are elsewhere treated of at length, and nothing more need be said here than that at this time and for many years afterward some of the most important litigation that engaged the attention of the Bench and Bar of Portland arose from this source. [page 331]
One case that might be mentioned arose in Polk County in 1853, By writ of habeas corpus a colored man and his wife were brought before Judge Williams, and it appeared that they had been brought as slaves from Missouri, by Nathaniel Ford, and were being held by him as such in Oregon. After careful inquiry the Court decided that there could be no slavery in the Territory of Oregon, and that the slaves were freed when brought to free soil.
Many cases arose under the Donation Land Law, and in one of them39 it was decided that an Indian wife of a white man was a married woman within the meaning of the Act, and capable of holding a half section of land, which decision it may be supposed affected not a few of the very early settlers in the Territory.
On the resignation of Judge Olney, Reuben P. Boise40 was appointed Associate Judge of the Territory, and Judge Williams having also resigned, Judges Deady and Boise remained the only judges until the admission of the State in 1859.41 At the election of June, 1858, to provide officers for the new State, Matthew P. Deady, R. E. Stratton, R. P. Boise and A. E. Wait were elected Judges of the Supreme Court, and on the 20th of May, 1859, they met at Salem and drew lots for their terms of office. Boise and Stratton drew the six year terms and Wait the four year term, the latter becoming, by virtue of the Constitution, Chief Justice. Deady having in the meantime been appointed by the President, Judge of the District Court of the United States for the District of Oregon, did not qualify for the State Court, and P. P. Prim, of Jackson County was appointed in his stead, and at the election of 1860 was continued in office by vote of the people. These judges under the constitution were Judges of the Circuit Courts and sat together as a [page 332] Supreme Court at stated intervals.42 Of these, Wait represented the Fourth District, which included Multnomah County. He resigned in 1862 to run for Congress, but was defeated and settled down to the practice of his profession at Portland, and in the meantime William W. Page was appointed judge and held Court from May to September, 1862. In the election of that year, E. D. Shattuck was elected over Page, who was a candidate, and in the same year Joseph G. Wilson was appointed to the newly created Fifth District,43 and the Court as thus constituted continued until 1867 without change in its personel.
Soon after the creation of the State, provision was made by Congress for extending the judicial system of the United States over Oregon. A District Court was provided for, and Matthew P. Deady was appointed judge,44 a position which he has since filled with dignity, until now, with the exception of one or two, he has been longer upon that bench than. any of the Federal Judges of the United States.
J. K. Kelly was appointed District Attorney for the United States,45 and Walter Forward, of Marion County, was appointed Marshal.
The first term of this Court was opened at No. 63 Front street, near Stark, on the third floor of the building, in 1859, and for many years the government afforded no better quarters for it, although the [page 333] place was poorly adapted for its purpose. In 1871 the present government building was completed and the Federal Courts were assigned commodious and convenient quarters.
During the years that have followed the organization of this Court, the strong individuality of Judge Deady has made him a prominent and central figure in the history of the city. The events of his life are elsewhere related, and it is sufficient in this connection to repeat that his indefatigable industry and his retentive memory, together with his many years of experience in a Court whose broad jurisdiction embraces many of the most important cases litigated in the Northwest, and every variety of criminal and maritime cases, as well as actions at law and suits in equity, have combined to form the solid basis for an eminence that ambitious lawyers may strive for, but few attain. His personal appearance, always noticeable, is dignified and impressive when he is upon the bench, and the business of his Court is conducted with decorum and a due regard for the proper ceremonies of a court of law. Judge Lorenzo D. Sawyer, whose home is at San Francisco, has been Circuit Judge of the Ninth Judicial District, which includes Oregon, since 1873, and when business demands it, sits with Judge Deady on the bench of the Circuit Court at Portland. He is a careful and painstaking man, and an able and impartial judge. Associate Justice Stephen J. Field, of the Supreme Court of the United States also sits in the Circuit Court at Portland when business requires it, and Judge George M. Sabin, of the Nevada District, has relieved Judge Deady during a temporary absence of the latter from Oregon.
The attorneys already noticed as prominent at Portland before the admission of the State generally retained their position in this respect during the decade following. This period was noted for the brilliancy and ability of the bar. Judge Strong came up from his farm at Cathlamet in the winter of 1861-62, and soon secured a lucrative practice and a foremost station among the Portland lawyers. He became the regular counsel for the Oregon Steam Navigation Company, the richest and most powerful of corporations, and in criminal and civil actions he, with Logan and Holbrook, and afterward Geo. H. Williams, Shattuck, Reed, Stout, Gibbs, Grover, [page 334] Page, Wait and Kelly were perhaps the most prominent at that time. Mitchell and Dolph went into partnership in 1864 and by 1870 they too, were in the lead, while others had long since dropped out of the race.
In 1863 there were twenty-one lawyers in the city; five years after, the number had increased to forty-one. The population was growing rapidly, the census of 1865 showing 5,819 inhabitants, an increase of over a thousand in one year. Law business, particularly concerning land titles, was flourishing.
The County Court was presided over by P. A. Marquam for many years until 1870, when he was succeeded by Edward Hamilton; and Judge Shattuck of the Circuit Court gave place to W. W. Upton, who was elected in 1868 and served until September 1874. Hamilton had been in partnership for a time with H. C. Coulson, who was afterwards elected Clerk of Multnomah County and gave satisfaction in that office, as he was a genial fellow and a well trained lawyer.
Smith, Grover and Page were in partnership early in the sixties but J. S. Smith dropped out and Grover and Page continued together until Grover was elected governor in 1870. Logan was in partner-ship with Farrar, then with Friedenrich, who afterwards was city attorney for a short time; then after remaining alone for some time, went into partnership with Shattuck in 1868, and they soon after added Killen to the firm, and in 1871, Logan himself dropped out. Holbrook formed no partnerships. W. Lair Hill and Marion F. Mulkey formed a partnership in 1865 and were together a short time; Hill afterwards united with C. A. Ball as Hill & Ball, and in 1872 with W. W. Thayer46 and R. Williams as Hill, Thayer & Williams. Stout and Larrabee and Larrabee, Stout & Upton, were quite prominent. Stout, an excellent lawyer and a consummate leader among men, acquired a large practice. A. E. Wait and J., K. Kelly were considered very able men and remained together as Wait & Kelly for some time.
The arrival of Ben Holladay in Oregon in 1868 marks the beginning of a new era in the history of the Bar of Portland. The railroad projects of the earlier part of the year were languishing and [page 335] by dint of the free use of men and money, Holladay soon had control of the Oregon and California, and the Oregon Central roads. Mitchell & Dolph became the attorneys to represent his vast interests in the State. They were young men of ability and enterprise and well able to manage any business confided to them, and in a remarkably short time acquired a large practice representing the corporations and heavy commercial trade. When in 1876 this Holladay management of the railroads came to an end and the German bondholders took possession of them, Villard was put in charge and the firm of Mitchell & Dolph was continued as the attorneys. In 1877, the Oregon Steam Navigation Company was absorbed by the Oregon Railway & Navigation Company and Mitchell & Dolph became its attorneys, Strong practically retiring from business at this time, though his business has since been successfully carried on by his sons Thomas N. and Fred. R. Strong, who were for some time associated with him under the name Wm. Strong & Sons. From the inception of the railroad enterprises in 1867, the railroads furnished a great deal of important business for the attorneys, both in and out of court, and other corporation business has grown in volume and importance.
Early in the seventies, other firms grew into prominence. J. W. Whalley and M. W. Fechheimer, as Whalley & Fechheimer, succeeded to a large commercial business, particularly in connection with the United States bankrupt law. W. H. Effinger, an elegant and eloquent orator, and Richard Williams, who had lately removed from Salem, won a large damage suit at The Dalles against the O. S. N. Co., and subsequently each acquired a large and lucrative practice. Effinger gave little attention to business after a few years of success, and finally in 1887 removed to Tacoma. Williams, on the other hand, associated with Thayer as Thayer & Williams for many years, and later of the firm of Williams & Willis and R. & E. B. Williams, has developed with his years and still holds the full measure of the honor and success his earlier practice foreshadowed. John Catlin, E.. Cronin, Raleigh Stott, men differing in character, were all successful. When Mitchell was elected senator in 1872, the firm Dolph, Bronaugh, Dolph & Simon, was organized as successors to Mitchell Dolph, [page 336] consisting of J. N. Dolph, Earl C. Bronaugh, C. A. Dolph and Joseph Simon. Among the younger men of ability of this period, and who still sustain the reputation they gained at this time are Geo. H. Durham, H. H. Northup, H. Y. Thompson, W. B. Gilbert and H. T. Bingham. Hill, Durham & Thompson were together for a time and then Williams, Hill, Durham, Thompson & Mays organized as a firm, with a firm name only equalled in length by the firm of later times consisting of Stott, Waldo, Smith, Stott & Boise. Length of firm name seems to have been popular with the Portland bar, as is illustrated in the modern cases of Dolph, Bellinger, Mallory & Simon, and Whalley, Bronaugh, Northup & Deady, and Mitchell, McDougall, Tanner & Bower. Caples & Mulkey and Northup & Gilbert were two well known firms for many years, until the one was dissolved by the death of Mulkey and other by mutual consent. Bellinger was associated with Burmester for some time, and, after serving a time upon the bench as Circuit Judge, succeeding Shattuck in September, 1878, he united with Gearin as Bellinger & Gearin and later joined the firm mentioned above, while Gearin and Gilbert formed a new firm. Killen & Moreland in 1882, Mitchell & Dement, Adams & Welty, and McDougall & Bower in the same year, and later Watson, Hume & Watson, Woodward & Woodward, Smith, Cox & Teal, Johnson, McCown & Idleman, are among the notable associations. Besides these there are many of equal prominence who have either formed no partnerships or are better known aside from their affiliations of that kind, a separate enumeration of whom would extend this chapter far beyond its pre-scribed bounds. No attempt has been made in referring to those we have mentioned to choose between men, or to make any invidious selections, but our aim has been briefly to notice in a general way the groups into which the bar has divided itself from time to time. The whole number of lawyers at the Portland bar in 1889, was 122.
Judge E. D. Shattuck, of the State Circuit Court was succeeded by Judge W. W. Upton, in 1868. He held the office until in turn succeeded by Judge Shattuck in 1874, who retired 1878. In that year the Legislature reorganized the judicial system of the State by providing for the election of the judges of the Supreme Court and [page 337] Circuit Courts in separate classes, and in accordance with the provisions of the Act, the Governor appointed three Judges of the Supreme Court, one of whom, J. K. Kelly, was from Portland, and another, R. P. Boise, had formerly resided there, the third was P. P. Prim, of Jacksonville. C. B. Bellinger was appointed to succeed Shattuck in the Fourth Circuit. The Circuit Judges now had no connection with the Supreme Court and could devote their attention to the business in their circuits, which, particularly in Judge Bellinger's district, had grown to such proportions as to tax the capacity of a single judge for work. The Fourth District included the counties of Multnomah, Clackamas, Washington, Columbia and Clatsop; a different arrangement was made in the year 1882, by which Multnomah itself constituted the Fourth District. Bellinger was an able judge, and gave universal satisfaction. He was prompt and attentive to business and quick to perceive and apprehend. When he retired in 1880 he had an established reputation for legal ability that soon brought about him his old clients with many new ones, so that he has had a growing prosperity and has maintained a foremost position at the bar. Raleigh Stott, who had been District Attorney, succeeded him as judge. He, too, proved a man of ability and an honorable and upright judicial officer. The growth of the community and the increasing business of the Court, kept him. constantly occupied, while the meager salary of the office illy compensated for its exactions. He resigned in 1884, and the members of the bar presented him with a handsome testimonial of their appreciation of his merits. On the petition of the bar, Seneca Smith was appointed in his stead, and held the office for the remainder of the term, to 1886. He at once adopted new rules for the purposes of expediting business, and devoted unremitting efforts to prevent the accumulation of cases. The Legislature. of 1885 relieved him by dividing the Court into two departments and providing for the election of another Circuit Judge in the district. Judge Loyal B. Stearns, of the County Court, was appointed to the office until the regular election, and Julius C. Moreland to the vacancy thus created in the County Court. At the election of 1886, Stearns and Shattuck were chosen for the full term of six years as [page 338] Circuit Judges, and John Catlin for the term of four years, as County Judge. Of their conduct in these offices, nothing more need be said than that they have faithfully and earnestly devoted themselves to their work, and have fully sustained their honorable reputations previously earned, which led to their selection for the important trust.
Without commenting upon individual cases of public interest and of historic importance that have come before the Portland Courts for trial, it may be said that as trade and population have developed, litigation of all kinds has increased and Portland have furnished nearly one half of the business of the Supreme Court of the State and the greater part of that in the United States Courts. The cases of the United States against Randall, postmaster of Portland, was watched with interest by Portland people and the public took sides for or against the defendant, who was accused of embezzlement. He was finally convicted, but still his friends were confident that he was innocent and he was at once given a prominent position of trust in the office of the Oregon Steam Navigation Company, which he held for some years. Pending trial, and long after, the newspapers were full of the case, and excitement ran high. Strong and Logan, who were pitted against each other in this case, had a spicy newspaper correspondence afterwards; Strong still declaring the innocence of his client, and Logan insisting that he was guilty. The latter quieted his opponent with his last contribution by his sarcastic reference to the feelings that must rankle in his breast at the thought that the innocent client he defended was suffering the pains of conviction.
Another criminal case that was watched with unusal interest, was the cases against Archie Brown, James Johnson and Joseph Swards, who, on the 23d of August 1878, entered the pawnshop of one O' Shea, locked the door behind them, knocked O' Shea senseless, and took from his safe, near where O'Shea was assaulted, some articles of value. They were seen leaving the shop, and being closely pursued by a constable, stopped and Brown fired at him but missed him and killed a boy, Louis Joseph. They then leaped into [page 339] a wagon standing near by and made their escape, but were finally taken, tried and convicted of murder in the first degree, after an exciting trial, and were finally executed.
The most remarkable litigation, however, is the series of cases known as the Holladay cases. Ben Holladay, whose name appears more than once in these pages, was the prince of borrowers, and among other creditors for large sums, was his brother Joseph. The two men were as unlike in appearance and character as though they were of different ancestors; Ben being a high liver, a spend-thrift, a man of gigantic schemes and boundless ambition, who scattered his own money and the money of every one on which he could lay hands broadcast in support . of his extravagant habits and his numerous projects; Joseph, on the other hand, made money by saving it and accumulating interest. He had no projects, no enterprises, no ambitions. He was crafty, stubborn and full of prejudices. As early as 1873, Ben began to make conveyances of property in Oregon to Joe to secure him for money borrowed from time to time, and in 1876, when Ben removed from Oregon to Washington City, Joe, by assignments of stock and deeds of real estate absolute upon their face, but which were intended as mortgages, had title to all that Ben possessed. Ben came back from Washington in 1884 and demanded his property from Joe, professing to be ready to pay his claim. Joe then set up a claim that he was the real owner of the property; that the conveyances to him were absolute, and not intended as mortgages.. Ben began suit to have the conveyances declared mortgages, and to redeem the property. The litigation lasted three years, and the result was that the conveyances were declared mortgages, and the amount of Joe's claim against the property was fixed at $315,000. In the meantime, Ben's other creditors had begun suit to have the conveyances to Joe set aside as being in fraud of their rights. During the litigation between Ben and Joe the property had been put into the hands of a receiver. After the decree was made in the Supreme Court, fixing the amount of Joe's lien against the property, and ordering that the property be sold to pay it, Ben and Joe made an agreement subject to ratification by the principal creditors, by which it was stipulated that Joe would [page 340] postpone the enforcement of his decree for three years, and as part of his agreement with Ben, he released from his lien and turned over to a trustee, for a number of pressing creditors, the stock of the Oregon Real Estate Company; and George W. Weidler, as such trustee, assumed charge of the property for the benefit of those creditors. In consideration of this it was further stipulated that Joe's lien should be increased to $340,000, on account of some claims which the Supreme Court had allowed. It was also stipulated that Joe and Geo. W. Weidler should be made receivers of the property in place of D. P. Thompson, who had previously been acting as such, and they were appointed accordingly. The stock of the Oregon Real Estate Company, which comprised the Holladay Addition to East Portland, was sold and paid off a great many of Ben Holladay's debts, all in fact known to be in existence at the time the property was released by Joe, and including lawyers' fees amounting to considerably over $100,000. The agreement extending the time before enforcement of the decree to three years also provided that Ben might redeem the several portions of the property before the expiration of that time upon paying off stated portions of the debt in accordance with an agreed schedule, and this was done with a portion of the property, by selling it and applying the price on the debt. Ben died on the 8th day of July, 1887, leaving a will dated in 1875, by which Joe was nominated as one of his executors, and he being the only one named residing in the State and qualified to act, was accordingly appointed by the County Court. A. case involving Joe's right to act in this capacity went to the Supreme Court and was decided in his favor. There were many creditors insisting upon payment of their claims, but the property was steadily advancing in value and no attempt was made to redeem the property. As the period for redemption drew to a close Joe was removed from the executorship, and James Steel was appointed administrator of the estate. This was also appealed to the Supreme Court and affirmed. Esther Holladay, the wife of Ben, died soon after him, leaving a will under which Rufus Ingalls was appointed executor, and also providing for his appointment as guardian of her children, but though he qualified for both trusts, he was subsequently [page 341] removed from the guardianship on the ground that the law of Oregon did not permit the appointment of a testamentary guardian by a mother. Another guardian was appointed by the Court. On the expiration of the three years, Joe ordered an execution out, but recalled it before the sale. Upon a showing made to the Circuit Court, an order then was made requiring the receivers to join with the administrator of Ben's estate in making a sale of the mortgaged property, the County Court having already directed the administrator to take that step. The attempt proved abortive, however, as Joe refused to sign the notice of sale. After fruitless attempts to obtain his acquiescence and co-operation, a warrant was issued for his arrest for contempt and he was brought to Portland, in charge of an officer, from the seaside where he had been sojourning, but he escaped and fled to Washington and then to British Columbia. He finally returned and by agreement and consent of the Court a nominal fine was imposed upon him and he caused execution to issue upon his decree, and the property was finally sold at sheriff's sale. The result was that Joe was paid, principal and interest, in December, 1889, after five years of expensive litigation, and a large amount of money and property was left in the hands of the administrator for the benefit of the creditors of the estate. Meantime, innumerable suits by creditors and others had been instituted, and the dockets of all the Courts have been crowded with cases connected in some way with the Holladay property. A fortune has been spent in attorneys' fees and Court expenses, and the end is not yet.
Another famous controversy in the courts was known as the Goose Hollow War in the newspapers, and involved a disputed boundary line between two Irish families. The case. assumed a great importance because of the litigious inclinations of the parties, which manifested itself in suits and counter-suits both civil and criminal, until the whole city was familiar with the case. The Hollands, Patrick and Margeret, who were parties to those suits have, since the boundary line was settled, found other subjects for litigation, and have in one case or another, employed nearly every attorney in Portland. [page 342]
History is best written from a distant standpoint. The perspective afforded by the lapse of years, makes it possible to view men and events objectively and to avoid many of the difficulties of describing the affairs of our own times. But, in general, it may be said that the present generation at the Bench and Bar at Portland, compares favorably with the lawyers of other cities of the Union.
In point of morals, notwithstanding the city has long been the representative city of the far Northwest, it is remarkable how few of the lawyers have failed to maintain the high standard of the profession; and while it is true, perhaps, that the average western lawyer is less profound and not so much inclined to theoretic analysis and to nice discriminations as those of older cities, yet for ready perception of the points in issue in their cases, they are second to none. A feeling of good fellowship prevails-the young beginner and the new comer find cordial welcome. The contests of the Court room, however warm or acrimonious, are forgotten when over.
The relations of the Bench with the Bar have moreover always been most friendly and pleasant.
The following is a list of attorneys who have practiced at the Portland Bar:
V. S. Anderson, J. E. Atwater, Henry Ach, W. H. Adams, G. G. Ames, G. W. Allen, E. M. Atkinson, C. Beal, Patrick Bull, Robt. E. Bybee, F. C. Bradshaw, E. C. Bronaugh, Octavius Bell, C. B. Bellinger, T. Burmester, C. A. Ball, H. T. Bingham, C. Buchanan, J. J. Browne, R. A. Bingham, W. S. Beebe, J. M. Blossom, Jr., J. Bower, W. T. Burney, J. V. Beach, J. Bentgen, J. J. Ballery, E. W. Bingham, George A. Brodie, J. Bourne Jr, J. Baldwin, Alex. Bernstein, L. Burton, C. R. Barry, A. S. Bennett, W. L. Boise, George A. C. Brady, P. J. Bannon, J. S. Beall, J. F. Boothe, B. B. Bukman, M. L. Bergman, Clarence Cole, H. A. Copeland, W. W. Cotton, W. W. Chapman, J. Catlin, J. G. Chapman, F. A. Cronin, C. M. Carter, J. F. Caples, Geo. F. Cole, Jno. C. Cartwright, John Creighton, Arthur Chrisfield, F. Clarno, B. I. Cohen, Jas. A. Campbell, P. O. Chilstrom, R. D. Coy, C. J. Curtis, Chas. H. Carey, C. H. Carter, M. R. Chambers, W. H. Chaney, W. H. Clagett, H, M. Cake, F. D. Chamberlain, Raphael. Citron, A. R. Coleman, S. W. Condon, L. B. Cox, G. T. Cromer, Wm. M. Cake, Alex. L. Campbell, J. N. Dolph, Cyrus A. Dolph, G. H. Durham, O. N. Denny, W. Dodge, H. C. Dray, Sidney Dell, B. F. Dennison, R. M. Dement, J. Danziger, W. B. Daniels, F. V. Drake, E. N. Deady, Paul R. Deady, F. J. Dahms, O. E. Doud, C. R. Darling, B. F. Dowell, J. Frank Davis, John Ditchburn, D. M. Donaugh, V. DePui, James M. Davis, A. C. Deupree, M. Elliott, D. M. Edmunds, W. H. Effinger, W. L. Evans, W. M. Evans, A. C. Emmons, R. W. Emmons, R. I. Eaton, H. H. Emmons, W. W. S. Eberle, W. H. Farrar, David Fredenrich, M. W. Fecheimer, A. French, [page 343] M. C. Fitzgibbons, A. S. Frank, William Foley, A. L. Frazer, Wm. D. Fenton, J. C. Flanders, L. F. Grover, A. C. Gibbs, T. J. Geisler, H. A. Gehr, James Guthrie, C. A. Gardner, Jos. Gaston, J. Garwood, D. Goodsell, W. C. Gaston, W. B. Gilbert, G. W. Gardiner, John M. Gearin, M. C. George, W. M. Gregory, James Gleason, Thos. Gordon, Hudson Grant, S. H. Green, J. F. Grey, W. W. Gibbs, J. A. Gill, R. R. Giltner, Jos. S. Gage, H. W. Hogue, G. F. Holman, E. Hamilton, E. W. Hodgkinson, Amory Holbrook, J. J. Hoffman, W. Lair Hill, R. F. Hensill, D. B. Hannah, J. J. Henderson, S. Heulat, O. Humason, Ellis G. Hughes, L. Holmes, W. H. Higby, Enoch Howe, E. D. Ham, F. V. Holman, E. T. Howes, C. F. Hyde, C. H. Hewitt, M. B. Harrison, V. R. Hyde, C. P. Heald, S. R. Harrington, C. R. Holcomb, W. T. Hume, John Hall, F. M. Ish, C. M. Idleman, H. D. Johnson, J. W. Johnson, Dewitt C' Jones, W. F. Jones, W. C. Johnson, T. E. Johnston, Henry Jacobs, S. A. Johns, Ira Jones, F. B. Jolly, J. K. Kelly, B. Killen, Peter G. Koch, C. M. Kincaid, Fred. L. Keenan, D. P. Kennedy, W. W. Knott, A. T. Lewis, C. E. Lockwood, Geo. W. Lawson, D. Logan, D. W. Lichenthaler, C. H. Larabee, A. J. Lawrence, Lafayette Lane, A. L. Lovejoy, C. Lancaster, M. O. Lownsdale, Geo. W. Lawson, A. Lenhart, S. B. Linthicum, W. M. Locke, A. W. Llewelyn, Mary A. Leonard, H. J. Moses, P. A. Marquam, W. L. McEwan, E. W. McGraw, J. H. Mitchell, M. F. Mulkey, L. F. Mosher, J. F. McCoy, S. A. Moreland, O. P. Mason, A. J. Moses, F. O. McCown, I. A. Macrum, Rufus Mallory, E. Mendenhall, J. C. Moreland, C. J. McDougal, F. Metzgar, C. F. McCormac, H. E. McGiun, E. W. Morrison, Pierce Mays, Wirt Minor, R. L. McKee, E. H. Merrill, M. C. Munley, Wm. H. Merrick, W. Y. Masters, E. J. Mendenhall, Newton McCoy, Frank P. McMullen, U. S. G. Marquam, R. G. Morrow, Wallace Mount, J. C McCaffrey, R. D. Murphy, C. W. Miller, J. T. Milner, W. T. Muir, G. G. McGinn, H. H. Northup, B. L. Norden, W. S. New-bury, H. B. Nicholas, James S. Negley, W. L. Nutting, James L. Onderdonk, Thos. O'Day, E. L. Peet, Harold Pilkington, W. W. Page, Chas. Parrish, P. D. Parks, S. Pennoyer, T. W. Pittenger, C. A. Petrain, O. F. Paxton, A. Paffenberger, J. N. Pearcy. J. M. Pittenger, J. W. Paddock, L. L. Porter, J. H. Reed, E. F. Russell, S. W. Rice, J. W. Robb, G. E. Robinson, J. H. Roberts, J. C. S. Richardson, B. Y. Roe, Sanderson Reed, J. S. Smith, Eugene Semple, W. P. Scott, Alex Sweek, Wm. Strong, George V. Smith, Alanson Smith, J. H. Stinson, L. O. Stearns, H. C. Small, E. D. Shattuck, J. W. Stevens, Thos. Smith, P. C. Sullivan, Walter V. Smith, Raleigh Stott, Joseph Simon, Fred. R. Strong, T. V. Shoup, Syl. C. Simpson, T. N. Strong, Loyal B. Stearns, H. Suksdorf, J. R. Stoddard, A. F. Sears, Jr., Seneca Smith, V. K. Strode, L. Scott, X. N. Steeves, Milton W. Smith, T. J. Smith, T. A. Stephens, J. B. Scott, Geo. W. Sproule, S. R. Stott, E. J. Searle, F. A. E. Starr, J. Silverstone, N. D. Simon, Zara Snow, Wm. E. Showers, James Summers, Sidney Smith, W. F. Trimble, W. W. Thayer, H. Y. Thompson, A. H. Townsend, Albert H. Tanner, David Turner, ---- Todd, Alfred Thompson, J. N. Teal, W. E. Thomas, J. B. Thompson, R. H. Thornton, G. H. Thurston, Cornelius Taylor, Claude Thayer, W. W. Upton, James Upton, C. B. Upton, J. S. M. VanCleve, George H. Williams, A. E. Wait, Leopold Wolff, James A. Waymire, J. W. Whalley, Charles Warren, John C. Work, John B. Waldo, M. S. Whest, R. Williams, J. H. Woodward, C. H. Woodward, D. W. Welty, Thornton Williams, P. L. Willis, C. B. Watson, J. R. Wheat, E. B. Watson, A. J. Welch, L. H. Wheeler, T. Brook White, C. E. S. Wood, John K. Wait; J. F. Watson, J. D. Wilcox, E. B. Williams, George L. Woods, Henry Wagner, T. H. Ward, G. W. Yocum G. D. Young.
1. Douglas was elected by the Legislature of 1845 one of the District Judges of the Vancouver District.
2. Under this act the Justices had jurisdiction to the amount of two hundred pounds sterling, and in criminal cases, upon sufficient cause being shown, the prisoner was to be sent to Canada for trial.
3. Gray History of Oregon, page 201. Wells History of the Willamette Valley, page 243.
4. The estate of Ewing Young was without an administrator until in 1844, when the Legislature authorized the appointment of one. (See Laws of 1843-1849, published in 1853, page 94). Several suits were brought against it, in one of which, the name of the administrator was omitted, and the estate itself was sued; the judgment was reversed on this ground, and this was one of the earliest cases in which an opinion was written by the Oregon Supreme Court, contained in Vol. I, Supreme Court Records, page 90. A. L. Lovejoy was the administrator. The Legislature subsequently ordered a sale of the property and the use of the proceeds to erect a log jail, pledging the return of the money to any heirs of Young that might establish their claim. It may be added that heirs did appear and claimed the property, but afterwards assigned the claim, and several unsuccessful efforts were made to collect the money` from the State, until finally by Legislative action the full sum and interest was paid.
5. Albert E. Wilson was an intelligent, unassuming and excellent young man, who came to the country in the employ of Caleb Cushing, of Massachusetts, in company with Captain Couch, on the Chenamus, and was left in charge of the stock of goods, brought out by that vessel, at Oregon City in 1842. He was not a lawyer by education.
6. Burnett's Recollections, page 193.
7. Gray's History of Oregon, page 374.
8. Burnett's Recollections, page 181.
9. 1 Sup. Court Record, page 2.
10. Burnett's Recollections, page 339.
11. 1 Sup. et. Rec. 52.
12. A. A. Skinner was also an attorney of the Court and these with Judge Burnett, after his resignation as Judge, were the only attorneys admitted to practice until June, 1848, when Samuel R. Thurston, Aaron E. Wait and Milton Elliott were on motion admitted to practice, (1 Sup. Ct. Rec. 98), these were the only attorneys admitted to practice in the Supreme Court before the organization of Oregon Territory.
13. Or. Archives, page 129.
14. Sup. Ct. Rec., page 10.
15. Or. Archives, 19. Gray's History of Oregon, 344.
16. June 28, 1843. Or. Archives, 23, 24.
17. Thornton, Or. and Cal. Vol. II, page 31.
18. Or. Archives, page 101.
19. The Oregon Spectator, the first Oregon newspaper, appeared at Oregon City in 1845, and this paper contained the only publication of the Statutes from time to time until 1851.
20. Bancroft, Vol. XXIV, page 435.
21. Laws of 1843-49, published 1853, page 103. At this time there was a great controversy as to the constitutionality of an act locating the State Capital and other institutions, and Judges Strong and Nelson siding with the persons who opposed the location of the Capital at Salem, held the statute invalid as relating more than one subject, not expressed in the title thereof. Judge Pratt decided that the act was valid and held Court at Salem. This code was nicknamed the " Steamboat Code" by Amory Holbrook, then District Attorney, and the title was adopted by many who sided with Judges Strong and Nelson, the soubriquet deriving its piquancy from the fact that the statute adopting it was loaded with miscellaneous provisions, not specifically indicated by the title. Judge Pratt at the request of the Legislature submitted an opinion in writing to that body advocating the constitutionality of the act. In the winter of 1853-54 the new judges of the Supreme Court appointed in the meantime, held the act valid.
22. This publication was prepared for the Territorial Secretary, Gen. Edward Hamilton, by Matthew P. Deady, and contained only those parts of the Iowa Code generally recognized as the law in Oregon, and in January, 1853, an act was passed authorizing the collection and publication of the statutes of the provisional government not published in that volume. This is entitled " Oregon Archives," and was edited by L. F. Grover. In the same session of the Legislature, a commission consisting of Messrs. J. K. Kelly, R. P. Boise, and D. R. Bigelow was appointed to draft a code, this was, by Judge Olney's influence, separated into statutes on various subjects before being adopted as a code. It was printed in New York, and after about 1.00 copies had been received in Oregon the remainder of the edition was lost in the wreck of a vessel bringing them via the Upper Columbia. Another edition was authorized in 1854-55 in which was incorporated, as a supplement, the statutes adopted at that session of the Legislature. In 1860, A. C. Gibbs and J. K. Kelly were appointed a commission to draft a civil code, but on the election of Gibbs as Governor, the two commissioners appointed Matthew P. Deady, who was then Judge of the District Court of the U. S., to assist, and the work was done by him and adopted by the Legislature of 1863. This was a laborious task, as the alterations necessary on account of the change from Territory to State and the alterations of counties, courts and practice required much detail work. The same Legislature then authorized the compilation of a Criminal Code by Judge Deady, which he accomplished, and reported his work to the Legislature of 1864, which adopted it without change,--Judge Deady reading it through on the last day of the session himself in the Senate to insure its passage, as he was a very rapid reader, and could read for several consecutive hours without rest. Deady was then authorized to compile for publication anew all the codes and laws, and this was published under his supervision, in 1864, he reading the proof. In 1872, the Legislature authorized Judge Deady and Sylvester C. Simpson, a member of the Portland bar, to collect and arrange the laws with notes and references. Soon after, Mr. Simpson resigned from the commission and the Governor appointed Lafayette Lane in his place. The work was mainly done by Judge Deady, and published in 1874. W. Lair Hill undertook to compile a new collection of laws in 1885 and received Legislative sanction and approval in 1887. He carefully collected and arranged the laws and added copious annotations and references to decisions both of Oregon and other States, and published it under the name "Hill's Annotated Statutes of Oregon."
23. 6 Wall, U. S. 402.
24. Laws 1843-9, Pub. 1853, page 38; 1 Sup. Court Rec., page 3.
25. The following is a list of the persons who held office of city recorder: W. S. Caldwell, 1851; S. S. Slater, 1852; A. C. Bonnell, 1853; A. P. Dennison, 1854; L. Limerick, 1855; A. L. Davis, 1856-7; Alonzo Leland, 1858; Noah Huber, 1859; O. Risley, 1861; J. F. McCoy, 1862-5; J. H. Hoffman, 1866-8; O. Risley, 1869; Levi Anderson, 1870.
26. The following is a list of the city attorneys after 1865: J. N. Dolph, 1865-6; W. W. Upton, 1867; D. Freidenrich, 1868; W. F. Trimble, 1869; C. A. Dolph, 1870-1; C. A. Ball, 1872; M. F. Mulkey, 1873-4; A. C. Gibbs, 1875; John M. Gearin, 1876-7; J. C. Moreland, 1878-82; S. W. Rice, 1883; R. M. Dement, 1884; A. H. Tanner, 1885-7; W. H. Adams, 1887-.
27. Special Laws, 1852, page 6.
28. The police judges were: D. C. Lewis, 1871; O. N. Denny, 1872-5; W. H. Adams, 1876-9; L. B. Stearns, 1880-2; S. A. Moreland, 1883-5; Ralph M. Dement, 1885-8; A. H. Tanner, 1889-.
29. Charter 170, Secs. 154, 160 and 175.
30. The Justices of the Peace who have served in the following precincts since 1863, are: 1863--4-L. Anderson, North Portland; D. W. Lichenthaler, South Portland. 1865-6--L. Anderson, North Portland; Geo. B. Gray, South Portland. 1867--L. Anderson, North Portland; Jno. Corey, South Portland; I. Graden, Central. 1868--L. Anderson, North Portland; S. A. Moreland, Central. 1869-70--J. O. Waterman North Portland; Jno. C. Work, Central; M. P. Bull, Washington. 1871-72--Thos J. Dryer, North Portland; C. Crich, South Portland; A. M. Snyder, Central; S. A. Moreland, Washington. 1873--Alex. Dodge, North Portland; C. Crich, South Portland; Thos. J. Dryer, Western, E. W. Ryan, Morrison, H. W. Davis, Madison; L. Anderson, Couch. 1874--E. Russell, North Portland; C. Crich, South Portland; Thos. J. Dryer, Western; E. W. Ryan, Morrison; H. W. Davis, Madison. L. Anderson, Couch. 1875--J. Reilly, North Portland; O. S. Phelps South Portland; Thos. J. Dryer, Western; A. Bushwiler, Morrison; H. W. Davis, Madison; L. Anderson, Couch. 1876-7--C. S. Clark, North Portland; O. S. Phelps and C. Crich, South Portland; Thos. J. Dryer, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; L. Anderson, Couch. 1878-9--J. E. Evans and J. R. Wiley, North Portland, C. Crich, South Portland; Thos. J. Dryer, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; L. Anderson and A. Bushwiler, Couch. 1880-81--C. Petrain, North Portland; S. S. White, South Portland; J. Phelan, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; A. Bushwiler, Couch. 1882-83--S, H. Greene, North Portland; S. S. White, South Portland; A. Keegan, Western; R. E. Bybee, Morrison; H. W. Davis, Madison; A. Bushwiler, Couch. 1884-5--S. H. Greene, North Portland; S. S. White, South Portland; C. C. Redman, Western; E. Bybee, Morrison; H. W. Davis, Madison; A. Bushwiler, Couch. 1886-7--A. Bushwiler, North Portland; B. B. Tuttle, South Portland. 1888-89--J. Phelan, North Portland; B. B. Tuttle, South Portland. 1890--John D. Bites, North Portland; W. H. Wood, South Portland.
31. The word "County" in place of " District" was authorized by Act of the Legislature, approved December 22, 1845. Laws of Oregon, 1843-1849, page 35.
32. The Statesman, of date July 11, 1851, published at Oregon City, contains an editorial concurring with the sentiment expressed in a letter signed "Willamette" published therein, which was laudatory of Judge Pratt. This was drawn forth by some resolutions adopted at a public meeting held at Portland, April 1, 1851, called to adopt measures to prevent the escape and provide measures for the punishment of Jabe McName, a gambler who had killed William Keene in a dispute over a game of ten-pins. The resolutions were drawn by a committee of which Col. W. W. Chapman was the moving spirit, and were no doubt greatly biased by the political heat of the time, as well as by the personal feelings of some of the persons present at the meeting. It was resolved that, "The repeated and almost continual failure of holding Courts not only in this, the Second District, but in Oregon generally is highly injurious." It was complained that no Court had been held in Washington county since the previous spring and no Judge resided in the district to whom application could be made for the administration of the laws.
33. Judge Nelson left June, 1853, after two years in Oregon.
34. It seems that Deady's removal and McFadden's substitution was owing to the fact that some political opponents of Deady's caused his commission to be made out with the use of a political nickname that had been made use of in some of the news-papers, instead of his proper name, and this was the cause for issuing another commission to McFadden, but the change, and the reasons for it were so unpopular in Oregon that Deady was soon reinstated.
35. Wilcox was a native of New York, where he graduated in a medical college, subsequently removing to Missouri, was married in 1845 and emigrated to Oregon in 1846. He was a County Judge of Tualitin County in 1847, and afterwards a member of the Legislature several terms. After holding the office of Clerk of the Supreme Court a short time, he was appointed in 1856 to the office of Register of the U. S. Land Office at Oregon City, which office he held until 1858, and was then again elected County Judge of Washington County and again a member of the Legislature. July 3, 1865, he was appointed Clerk of the U. S. District Court at Portland, a position he held until April 18, 1877, when he died by his own hand. He was a genial man, a universal favorite with the bar, and though he had some weaknesses, he merited his popularity.
36. The attorneys of the Territorial Supreme Court admitted before that time were : December Term, 1851, John B. Preston, David B. Brennan, Simon B. Mayre, A. Campbell, Alexander E. Wait, William T. Matlock, Cyrus Olney. E. Hamilton, W. W. Chapman, J. B. Chapman, Columbia Lancaster. December Term, 1852: J. G. Wilson, Milton Elliott, James McCabe, Reuben P. Boise, G. N. McConaha, J. A. B Wood, David Logan, Addison C. Gibbs, M. P. Deady, A. L. Lovejoy, A. Holbrook, B. F. Harding, L. F. Grover, G. K. Shiel, E. M. Barnum, James K. Kelly, R. E. Stratton, S. F. Chadwick, L. F. Mosher, C. Sims, M. A. Chinn, Delazon Smith, N. Huber. (Vol. 2, Sup. Ct. Records.)
37. The first jury in Multnomah County consisted of J. S. Dickenson; Clark Hay, Felix Hicklin, K. A. Peterson, Edward Allbright, Thomas H. Stallard, William L. Chittenden, George Hamilton, William Cree, Robert Thompson, William H. Fresh, Samuel Farnam, William Hall, William Sherlock, W. P. Burke, Jacob Kline, Jackson Powell, John Powell.
38. The following is a list of the Judges of the County Court of the State of Oregon for Multnomah County: E. Hamilton, 1858-1862; P. A. Marquam, 1862-1870; E. Hamilton, 1871-74 ; J. H. Woodward, 1875-78 ; S. W. Rice, 1879-82 ; L. B. Stearns, 1883-85 ; J. C. Moreland, 1885-86 ; John Catlin, 1886-90.
39. Randolph vs. Otis, 1 Or. 153.
40. Boise who lived for some time at Portland has spent most of his life upon the bench of the Supreme and Circuit Courts of Oregon, and is at present Circuit Judge in the Third District. As a judge he has deserved honor, being recognized as fearless and upright, and by reason of his many years of experience, as well as his early education, is well fitted for his position.
41. The following Portland lawyers were members of the Constitutional Convention: M. P. Deady, J. K. Kelly, A. L. Lovejoy, Cyrus Olney, John H. Reed, L. F. Grover, Geo. H. Williams, David Logan, Reuben P. Boise and E. D. Shattuck.
42. By the Act of June 3, 1859, a term of the Supreme Court was directed to be held at the Seat of Government on the first Monday of December following, and there-after at the Seat of Government, on the second Monday in December, and at Portland on the second Monday in July annually. By Act of October 17, 1862, one term was ordered to be held at the Seat of Government annually on the first Monday of September. This was again changed in 1872, 1878, 1880 and 1889, no provision being made for holding Court at Portland, but the Act of 1889 providing for one term each year at Pendleton.
43. Act approved October 11, 1862, entitled "An Act to create the Fifth Judicial District, and increase the number of Justices of the Supreme Court."
44. His commission was dated March 9, 1859.
45. The District Attorneys of the United States have been J. C. Cartwright, 1868-71; Addison C. Gibbs, 1872-73; Rufus Mallory, 1874-82; J. F. Watson, 1882-86; L. I,. McArthur, 1886-90. Clerks-Hamilton Boyd, 1863-65; Ralph Wilcox, 1865-77; Edward N. Deady (pro tern) 1877; R. H. Lamson, 1877.
46. See sketch of his life, in biographical portion of this volume.