I am requested by the Oregon Bar Association to write a paper on "The Preparation and Adoption of the First Code."
Before writing about the actual preparation of the first code, I desire to say something about the confused and uncertain condition of statutory law in Oregon Territory, prior to 1853, and the reasons which induced the territorial legislature of 1852-53 to elect three commissioners to prepare a code of laws for Oregon Territory.
On June 27, 1844, the Provisional Government of Oregon, declared that "All the statute laws of Iowa Territory, passed at the first session of the legislative assembly of said territory, and not of a local character, and not incompatible with the conditions and circumstances of this country, shall be the law of this government, unless otherwise modified": Laws, 1843-49, p. 100.
The fourteenth section of the act of Congress of August 14, 1848, organizing the Territory of Oregon, continued these laws of the Provisional Government in force until they should be altered or repealed.
At the first session of the legislative assembly, held at Oregon City, two acts were passed by that body, which, owing to the construction placed upon them by the supreme court of the Territory, had a tendency to produce dissension and discord among the people of Oregon, which lasted for two or three years. One of these was "An act to provide for the selection of places for location and erection of the public buildings of the Territory of Oregon," passed February 1, 1851.
The other act was one which declared to be adopted, and in force, certain acts of the revised statutes of Iowa Territory published in 1843. The legislative assembly of Oregon by a single act adopted these acts of Iowa, designating them by their several titles, and the dates of their passage. This law was generally known as the "Chapman Code," owing to the fact that the bill was introduced by and its passage secured through the influence of Hon. W. W. Chapman, then a member of the legislative assembly.
Soon after these two acts were passed, their validity was questioned, especially that of the one which located the public buildings, and transferred the seat of government from Oregon City to Salem. Those who denied their validity did so on the ground that they contravened that clause of the organic act of August 14, 1848, section 6, which provides that "To avoid improper influences which may result from intermixing in one act such things as have no proper relation to each other; every act shall embrace but one object, and that shall be expressed in the title."
Legal proceedings were soon taken by persons interested in retaining the capital at Oregon City to declare the act of removal invalid. A suit brought for that purpose came on for hearing before the supreme court at Oregon City, in December, 1851. By law the judges of the district courts composed the supreme court of the territory. They were Thomas Nelson, Chief Justice, O. C. Pratt, and William Strong. Of these Nelson and Strong had been appointed by Presidents Fillmore and Taylor, respectively, while Pratt was holding over under an appointment of President Polk. The former were Whigs politically, while the latter was a Democrat. Judges Nelson and Strong convened at Oregon City, and opened the supreme court there. Judge Pratt went to Salem under the act which changed the seat of government, but without a quorum could not hold a session of the court. Judges Nelson and Strong then decided that the act of the legislative assembly providing for the selection of places for the location and erection of the public buildings, passed February 1, 1851, was void, because it contravened the organic law of August 14, 1848, as before stated. The opinions of the judges were never published in the Oregon Reports, for what reason I do not know. Possibly they were not filed with the supreme court. Judge Pratt claimed that this decision amounted to nothing because it was not made at the seat of government, as established by act of the legislative assembly, and in this opinion that body then assembled at Salem, readily concurred. This heated controversy about the location of the capital was, however, settled by a joint resolution of Congress, adopted May 4, 1852 (10 U. S. Statutes, 146). The first section legalized the act of the territorial legislature which located the public buildings, and the second section declared that the late session of the legislative assembly was held in conformity with the provisions of law. This, of course, ended all dispute about the location of the capital, but unhappily another controversy grew out of the construction placed by Judges Nelson and Strong upon the sixth section of the organic law of August 14, 1848. For the same reasons which they held the act for the location of the public buildings void, they also held the act of the legislative assembly, which adopted the revised statutes of Iowa, to be also invalid. In other words, these judges held that by adopting several distinct statutes of Iowa in one act, it necessarily embraced more than one object. Judge Pratt took a different view and held that the act of the legislative assembly embraced but one object, to wit, the adoption of a code of laws of the territory.
The result of these conflicting views of the judges was that in Judge Nelson's judicial district, composed of Clackamas, Marion, and Linn counties, and in Judge Strong's district, composed of Clatsop County and the counties north of the Columbia River, the Iowa Code of 1838, adopted by the Provisional Government, was held to be in force. Judge Pratt's district, composed of all the territory west of the Willamette River, included the counties of Washington, Yamhill, Polk, and Benton, and in this district the "Chapman Code" of the Revised Code of Iowa Statutes of 1843, was recognized as the law in force. In the district of Nelson and Strong, the lawyers would cite the law from the "Little Blue Book," as the volume of Statutes of Iowa of 1838 was called. In Judge Pratt's district the same lawyers would quote from the "Big Blue Book," as the Iowa Code of 1843 was called. There were but three or four copies of the little blue book in the territory, one of which was owned by Hon. A. E. Wait. The last time I saw it it was in the possession of Hon. Benton Killin. There were only two copies of the big blue book in Oregon and the statutes adopted by the Chapman Code were not published until the latter part of 1853, when they were printed by the territorial printer and bound in paper covers. A number of these printed copies were distributed among the several counties in the territory, but the uncertainty and doubt as to their validity made them of little value.
As I said before, Judge Pratt's views of this legal controversy coincided with those of the legislative assembly, then in session at Salem, and that body passed an act detaching the counties of Marion and Linn from the judicial district of Judge Nelson, leaving him only Clackamas County, in which he resided. In this act it was provided that the terms of court in Marion and Linn counties should commence one week earlier than they did under the old law. So Judge Pratt held court at Salem and Albany under the new law, and a week later in each county Judge Nelson went to Salem and Albany to hold the district court under the old law. He found, however, that Judge Pratt had preceded him, held the courts, and adjourned for the term. Judge Nelson finding that no business was prepared for hearing before him by the lawyers, and no jury summoned to try cases, returned somewhat disgusted to Oregon City, and was soon after relieved by the appointment of Hon. George H. Williams, as chief justice of the territory. He went back to his home in New York, where I believe he still lives [1894.]