Chapter § 6.1

• Jurisdiction: Oregon

§ 6.1 INTRODUCTION

This chapter outlines the constitutional underpinnings of the right to a jury in Oregon state courts.

§ 6.1-1 The Jury before Statehood

The oldest hint of an Oregon proto-jury trial dates to 1835. A cattleman and gunsmith, Thomas Jefferson Hubbard, killed a tailor in a dispute over Mary Sommata, "an Indian girl" he later married. Howard McKinley Corning ed., Dictionary of Oregon History 119 (1989). In what may have been an ad hoc coroner's jury on Sauvie Island, "jurors" convened and a magistrate was appointed. The jury acquitted Hubbard on a justifiable-homicide defense and gave him a certificate of innocence. Corning ed., Dictionary of Oregon History at 119; Charles H. Carey, General History of Oregon 317, 332 (3d ed 1971) (noting the acquittal as an "unofficial investigation"). The Hubbard trial may demonstrate some settlers' early inclination to try to continue a tradition of gathering information and producing a written verdict.

In 1838, 36 settlers in the Willamette Valley sent a petition to Senator Lewis Linn of Missouri defining themselves as "settlers of the Columbia river." J. Henry Brown, 1 Brown's Political History of Oregon 54-56 (1892). One of their requests was for the United States Congress to "invite a good community" with adoption of "a well-judged civil code" because without a civil code, they "can promise no protection but the ulterior resort of self-defense." Brown, 1 Brown's Political History of Oregon at 55-56; see Dorothy O. Johansen, Empire of the Columbia 180-81 (2d ed 1967). Senator Linn introduced a bill authorizing occupation of Oregon territory by the United States, but the bill did not pass. "Southern members" of Congress "opposed everything pertaining to Oregon" due to the slavery issue and due to "Northern members" who "were afraid of creating trouble with Great Britain" and did not believe that Oregon territory "was worth quarreling about." Brown, 1 Brown's Political History of Oregon at 56-57; see Johansen, Empire of the Columbia at 186.

In 1841, around 137 American settlers sought to separate from the Hudson's Bay Company that autocratically occupied and ran the land and markets. "The Hudson's Bay governor and his council had authority not only to punish their own offenders but also to try for any crimes in any of 'the said Company's plantations, forts, factories or places of trade within the Hudson's Bay territory.'" Walter C. Woodward, The Rise and Early History of Political Parties in Oregon 1843-1868 13 (1913) (internal citation omitted); see Brown, 1 Brown's Political History of Oregon at 81; Lawrence T. Harris, History of the Oregon Code, 1 Or L Rev 129, 131 (1922) ("In minor matters the Hudson's Bay Company was absolute."). After several informal meetings, they adopted the laws of New York preliminarily while intending to adopt a constitution and law code. But the committee to draft a constitution and code as a provisional government never met, due to pressure from the Hudson's Bay Company agent, Dr. John McLoughlin. Brown, 1 Brown's Political History of Oregon at 83-84. The settlers did appoint a judge, who was a physician, and "who was not even in possession of a volume of the New York statutes he was supposed to apply. The plan was allowed to die." Carey, General History of Oregon at 326 ("The interest at Washington at this time was not keen"); see Harris, 1 Or L Rev at 132 ("I query whether there was a single copy of the laws of that state (New York) in the country for ten years after the last resolution was passed." (internal citation omitted)); see also Brown, 1 Brown's Political History of Oregon at 81; David Schuman, The Creation of the Oregon Constitution, 74 Or L Rev 611, 612 (1995) (noting one-man "private rule" between 1824 and "the early 1840s").

In June 1842, at Champoeg, a meeting was held around Dr. Elijah White's arrival in the Willamette Valley, as he self-promoted with an idea that the federal government could be interested in Oregon Territory. Elijah White, Ten Years in Oregon 168-69 (1850); Corning, Dictionary, at 263 (White was a "forceful man"). A seven-man committee was selected to "draft resolutions" for a provisional government. White, Ten Years, at 169. One of those men was "Mr. T.J. Hubbard." White, Ten Years, at 169. It is not clear if that meeting produced laws. See Carey, General History of Oregon at 325 (referencing White's arrival and advocacy); Johansen, Empire of the Columbia at 186.

In 1843, the non-native American settlers in Oregon Country formalized the right of trial by jury. Carey, General History of Oregon at 336. In 1843, Hubbard (the defendant acquitted of homicide in 1835) was among 12 men elected to serve on a committee to organize a formal meeting at Champoeg. Carey, General History of Oregon at 333. The purpose of the committee was to begin organizing a political structure in Oregon Country. Carey, General History of Oregon at 328. Corning, Dictionary, at 119. The settlers formed a provisional government and created an organic law that existed from 1843 to 1848, with amendments. See Carey, General History of Oregon at 317-405; Donald C. Johnson, Politics, Personalities, and Policies of the Oregon Territorial Supreme Court, 1849-1859, 4 Envt'l L 11, 13 (1973); Ronald B. Lansing, Oregon's Provisional and Territorial Supreme Court, 46 Willamette L Rev 407, 407-09 (2010) ("Squatting on U.S. public lands to gain private ownership was a familiar and formalized process in the mid-1800s.").

The "form that government took demonstrates the force of imitation and tradition." Robert V. Hine & Edwin R. Bingham, The Frontier Experience 93 (2d ed 1966). There was a political purpose "in basing the scheme of government" for Oregon on the Northwest Ordinance of 1787. Woodward, Political Parties in Oregon 22. The Northwest Ordinance of 1787 "planned the evolution of territories to statehood." Leonard W. Levy, Original Intent and the Framers' Constitution 145 (1988). It was the first federal document to contain a bill of rights. Levy, Original Intent at 145.

The Northwest Ordinance of 1787 had been published since July 25, 1787, in the Pennsylvania Herald. Charles Warren, The...