of the majority of those voting for it are expressed in Section I of the Organic Law which says, "We the people of the Oregon territory agree to adopt the following rules and regulations until such time as the United States of America extend their jurisdiction over us" 11 The rules and regulations adopted July 5, 1843, were called the First Organic Laws of Oregon. Speaking of them, Peter H. Burnett, an able jurist who had been a District Attorney in Missouri and who was a member of the Oregon Legislative Committee of 1844 says, "From the face of the Code, no one could tell where the constitutional laws ended and the statutory began. It was either all constitutional or all statute" 12 As this law was in force for less than two years and over a small number of persons, we shall mention only two sections of it because of their effect on the political and economic status of women. The first, Article 4, entitled to vote at the election of officers and to be eligible to office, "every free male descendant of a white man, an inhabitant of this territory at the age of 21 and upwards", resident at the time of organization or who had had six months' residence since. The second section, Article 17 permitted all male persons of the age of 16 years and all females of the age of 14 to engage in marriage, provided that when either party was under the age of 21 the consent of the parents of the minor was required to make the marriage valid. The Legislative Committee of 1844 left the voting and eligibility to office qualifications in the amended Organic Act, but the ruling on marriages was removed as being purely statutory. An act regulating marriages was passed which changed the earlier provision decidedly by lowering the age at which a girl could contract marriage with her parents' consent to twelve years and without her parents' consent to eighteen.' The requirement that made parents' consent necessary to the validity of the marriage had put in legal jeopardy any marriages contracted without such consent and had placed the children of such marriages in a doubtful position to inherit. So the parents' consent until a girl was eighteen years old was provided for but lack of it was 13 not to invalidate the marriage. Its adoption in Oregon was suggested doubtless by the Iowa statute; but we can explain it only as due to unwise haste on the part of the masculine element to obtain helpmates and homes. A land law passed as a statute in 1843 had permitted "any person", regardless of age, sex or condition to hold a land claim, and one year was given to present holders, twenty days to future claimants in which to record the claims;14 each claimant had six months after recording his claim within which to make his improvements and one year from the date of record within which to become an occupant. But this act did not require the locator to make his improvements with a bona fide intention of occupying and holding the claim himself, and rather encouraged the staking of claims for speculative purposes; it also worked a hardship on arriving immigrants for as Judge Burnett says,15 a month before the annual immigrant train was expected, a man with a half dozen minor children could record a claim in the name of each one", and that record would hold the claim for six months, thus forcing new settlers to go farther back into the wilderness or purchase the claims from these children. This was amended in 1844 and made more stringent.16 Only free males of eighteen years, and upwards, who would be entitled to vote if of lawful age, and widows, and married males of less than eighteen years might hold the land claims, and permanent improvements had to be made on them within a year, with a bona fide intention of holding the claim for oneself, though a tenant would fulfill the requirement of occupancy; likewise a man was to hold only one claim at a time though he might hold town lots also.17 When the Legislative Committee assembled in June 1845, a sub-committee re-drafted the Organic Law which was first passed upon by the regular legislative body and then submitted to the people at the polls where it received a majority of 203 votes.18 This new compact, the Amended Act or Provisional Constitution, has been described as "more nearly resembling a constitution and being better suited to the needs of a growing community'' 19 The Statute Laws of the Territory of Iowa enacted by the first legislative assembly, 1838-1839, was the only code of laws in the Oregon Territory in 184320 and so this was declared to be "the law of this territory by the First and Amended Acts", in civil, military and criminal cases, where not otherwise provided for; "and where no statute applies, or has been adopted the principles of common law of England and of equity shall govern" 21 The Ordinance of 1787 was applying in Iowa when its territorial laws were drafted and a copy of the Ordinance was bound with the laws so that it is not surprising to find parts of the former incorporated bodily into the Oregon Provisional Constitution.22 The Iowa statute on wills and administrations seemed to be the one most longed for by the far western pioneers. One of the reasons urged by the settlers in 1841 for immediate organization of a government had been the death of Ewing Young, a pioneer who had projected a problem into the community by dying intestate, leaving valuable estate and no known heirs.23 Apropos of similar problems, Peter Burnett wrote to an eastern friend in 1844,24 "Our commercial and business transactions were considerable. Difficulties were daily occurring between individuals in relation to their claims; the estates of deceased persons were daily devoured and helpless orphans plundered". The contributions of the Iowa Code of 1838 to a definition of the status of women in Oregon were several acts based on English common law; these were acts relative to pleas in abatement, to limitations of actions, to personal protection, to administration of estates, to divorce, relative to wills and to apprentices and masters.25 Dower was "saved" to the widow by the Ordinance of 1787. The Iowa Code gave four causes for divorce, which probably sufficed for the nine couples recorded in legislative proceedings as seeking divorces in Oregon from 1843 to 1849.26 Another Iowa statute related to apprentices and servants.27 This permitted the father, if he were alive and competent, if not, the mother to bind over a daughter until eighteen years of age. Section 3 of this Act, con sidering the youth of the apprentices "gives us pause". It read, "If a person so bound shall refuse to serve on terms of indenture the justice of peace shall commit him or her to the jail of the proper county, there to remain until he or she be contented and will serve". Perhaps the mere inclusion of this penalty was sufficient to restrain the indentured ones, the girls anyhow, from ever refusing to serve. Many of the laws of this early period were concerned with the division of the country into districts, the opening of roads, the building of ferries and the regulation of the liquor traffic. Even before Oregon was a territory, "the ladies" of the community had learned the efficacy of petitioning the legislature for such legislation as they wished. The Oregon Archives preserve a “petition of the ladies of Oregon City" to the Legislative Committee in 1847 "praying an amendment to the Organic Law, so as to prohibit the sale of spirituous liquors". The following day the legislative body responded by adopting a resolution that "the ladies of Clackamas (county) for their united expression in a matter that deeply interests every good citizen of Oregon have the unanimous thanks of the House" 28 Peter Burnett says that he had very little legal practice, partly on account of the character of the inhabitants. "I never saw so fine a population as a whole community as I saw in Oregon most of the time while I was there. They were all honest, because there was nothing to steal; they were all sober, because there was no liquor to drink; there were no misers because there was no money to hoard; and they were all industrious, because it was work or starve. In a community so poor, isolated and distant, we had each one to depend upon his own individual skill and labor to make a living. My profession was that of law, but there was nothing in my line worth attending to until some time after my arrival in Oregon" 29 But as the Oregon question was debated in Congress each session and advantageous land laws were introduced for the country, the population increased steadily until, in 1846, when the treaty was signed with Great Britain determining the boundary, it was estimated that the whole population of Oregon was about 9,000 souls exclusive of thoroughbred Indians.30 One of the last laws passed by the Provisional Government legislature was an act in 1849 to secure to heirs of deceased persons the value of their land claims.31 In 1848 Oregon was organized as a territory. The Congressional Act authorizing this extended the Ordinance of 1787 over the territory and further provided "that the existing laws now in force in the territory shall continue to be valid and operative therein, so far as the same be not incompatible with the Constitution of the United States and the principles and provisions of this Act". In September 1857, the territorial legislature framed a constitution and asked Congress for admission as a state but feeling over the slave question delayed action until March 3, 1859 when Oregon, the last state to be admitted before the Civil War, came into the union. To summarize the status of woman in Oregon during the period of the Provisional Government, one may say she lived actually in conditions which permitted great freedom of action and initiative, but strictly speaking, she was restricted by English common law, by the first code of Iowa Territory and by the law of the Provisional Government. She was denied the vote and active participation in legislation, but she was neither silent on this account nor ineffective in her influence as the instance cited earlier proves. The history of other legislation for women in the territory and State will be discussed under special headings as follows: Civil Rights of Women: Property Rights Administration of Estates In the Matter of Support Marriage and Divorce Age of Majority Women in Industry. Political Rights of Women: Woman Suffrage. |