Page:Portland, Oregon, its History and Builders volume 1.djvu/739

 Hams and Olney, the latter two being from Iowa, settled the matter with a pro forma decision declaring the "big blue book" to be the statute law of Oregon. As to the common law, the pioneers brought that across the plains with their families and wagons, just as their forefathers brought it across the ocean from England in ships ; and they made the statute law themselves after they got here.

To put at rest the question whether our pioneers had established a real gov- ernment the legality and binding force of the acts of the provisional government came ug in the courts. U. S. District Judge Deady held, in the case of Lowns- dale vs. City of Portland, decided in 1861 : "It is well known that at the time of the organization of Oregon territory, an anomalous 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 high- ways, passed revenue laws and collected taxes, made war and concluded peace." And this language of Justice Deady was subsequently, in the case of Stark vs. Starrs, quoted and approved by the supreme court of the United States. And again when the same question was raised in the territorial supreme court in the case of Baldra vs. Tolmie, reported in ist Oregon Reports, p. 178, Chief Justice George H. Williams said : "Confessedly the provisional government of this ter- ritory was a government de facto; and if it be admitted that governments de- rive their just powers from the consent of the governed, then it was a govern- ment de jure."

This question has been gone into in detail for the reason that the lawful exist- ence of the provisional government, or of any government in Oregon, was dis- puted by the British ministry in making the final treaty establishing the boundary line west of the Rocky mountains. The lordly Briton could not conceive of any- body anywhere on the face of the earth having any rights that were not handed out by a king. They had not forgotten Yorktown and New Orleans ; and were not in any temper to concede anything to the Missourians in Oregon.

LAWS AND JUDGES AT PORTLAND.

There were no courts held at Portland or within the present boundaries of the city during the rule of the provisional government. And only in a single instance was the provisional government recognized at Portland. The people of Portland were busily engaged in building a city, and had neither cause or incli- nation to call for intervention of courts to settle disputes. But the provisional government recognized the settlement at Portland ; an act having been passed by the legislature in December, 1845, providing for the election of a justice of the peace in the eastern district of Tuality county. Tuality was the first name of Washington county, and that county then included the town of Portland. Under the act named, a citizen of Portland named A. H. Prior was elected a justice of the peace and duly commissioned on October 7, 1846, to discharge the duties of that office. Mr. Prior was therefore the first judicial officer or official of any kind to be recognized as such in the history of Portland.

In 185 1 Portland was given a charter by the territorial legislature, and that charter provided for a recorder with the same jurisdiction as a justice of the peace in the collection of debts, and of ofifences against the laws of the territory, and exclusive jurisdiction of offences against municipal ordinances. And under that charter W. S. Caldwell was elected the first recorder, and making him the first judicial officer under the authority of the city.

The court and jurisdiction of the recorder was maintained until 1870; and the office was filled by successive elections of the following persons until 1890 to wit: S. S. Slater, 1852; A. C. Bonnell, 1853; A. P. Dennison, 1854; L. Lame- rick, 1855; Anthony L. Davis, 1856-7; Alonzo Leland, 1858; Noah Huber, 1859; Oliver Risley, 1861 ; J. F. McCoy, 1862-5; J. J. Hoffman, 1866-8; Oliver Risley,