I have referred to this almost forgotten history of the early days of the territorial government of Oregon to show the necessity that existed for a revision of the statutory laws of the territory. The uncertainty as to what laws were then in force, and the desire to be relieved from this condition of affairs was the principal reason which induced the legislative assembly to pass the act of January, 1853, providing for the election by that body of three commissioners to prepare a draft for a code of laws, to be submitted to the next legislature. In pursuance of this act, the legislative assembly elected the following commissioners in the order named: James K. Kelly, of Clackamas County, Reuben P. Boise, of Polk County, and Daniel R. Bigelow, of Thurston County.
Being first elected, I acted as chairman of the board, and notified the other commissioners of the time of our first meeting, which took place some time in March, 1853. We met in the council chamber of the legislative building, where all our subsequent meetings were held.
The first two or three days were occupied in discussing the general outline of our duties and the kind of code to be prepared. By common consent we agreed to accept the New York code of practice as the basis of our own, but with a notable exception in regard to proceedings in equity. Mr. Bigelow strongly insisted upon having no separate court of equity or of equity proceedings, but urged that we should follow the example of California in this respect. Mr. Boise and I differed from Mr. Bigelow. We contended that in the organic act of August 14, 1848, a separate system of equity proceedings was contemplated, wherein it is provided that "each district court or judge thereof shall appoint its clerk, who shall be the register in chancery": Act, August 14, 1848, § 9.
That it was so understood by the members of the first legislative assembly appears by the act of September 14, 1849, directing the mode of proceedings in chancery: See Hamilton Laws.
The system of equity jurisprudence and proceedings in equity adopted by the first code commissioners has now prevailed in Oregon for forty years, and during all that time I think has met the approbation of both bench and the bar.
Another thing agreed upon by the commissioners was that the code should be prepared so that it might be adopted by the legislative assembly in several acts instead of one, as was done in the Chapman Code in 1850. This was done in order to comply with the provisions of the organic law, which required that every act should embrace but one object.
These preliminaries being settled it was agreed that each commissioner should take one subject and prepare the draft for an act upon that particular branch of the law. During the preparation of these drafts the commissioners held frequent consultations, as often as once or twice a week, to discuss and agree upon the proper phraseology to be adopted, or arrangement of subject-matter in the proposed act.
It was agreed among us that Mr. Boise should prepare the act relating to executors and administrators, and also proceedings in the probate courts.
To Mr. Bigelow was assigned the duty of preparing the act relating to crimes and misdemeanors, and to regulate criminal proceedings. I undertook to prepare the code of civil procedure in actions at law and suits in equity.
These three subjects embraced the greater part of the laws which we undertook to prepare, and, after their completion, the remaining portion of our work was comparatively easy and brief. According to my recollection it was completed in the latter part of the summer or early fall of 1853. We prepared the draft for an entirely new code of statutory laws, with the single exception of the law relating to wills. This had been enacted by the legislative assembly in 1849, at its first session, the main features of it being a transcript from the Missouri statute on the same subject. As this was one of the first acts passed by our own legislation we adopted it in our draft with only a few verbal changes.