Defining the Role of the Judicial Branch

The front of the U.S. Supreme Court Building
Convention delegates traveled a well-worn path that set up three branches of government, including a supreme court and lower courts. Shown above is the U.S. Supreme Court Building in Washington D.C. (Image courtesy Wabash College)
A central task of the constitutional convention was to devise the basic structure of what would be the new state government. Theoretically, they could have chosen any arrangement, but characteristically, none of the delegates offered proposals for anything other than the standard three branches consisting of a single executive, a bicameral legislature and a judiciary with a supreme and lower courts. Previous experiences of other states showed that there was no justification for experimentation. The delegates instead sought to make minor modifications to an already proven structure. The convention first discussed the makeup of the judicial department.

The Power of the Courts

While much of the rest of the constitution used the Indiana charter as its basis, the convention's committee on the judiciary looked to the 1848 Wisconsin Constitution for much of its inspiration. As part of the Democratic leaders' efforts to speed the convention down a path of their choosing, some delegates had been working on specific parts even before the body convened. These included the judges of the territorial supreme court, all of whom also served as delegates and sat on the lawyer-dominated committee on the judiciary. Footnote 1

Proof print portraits of George Williams
Some delegates may have lost confidence in George Williams as chairman of the judiciary committee after his report was "cut all to pieces" by the convention. Internal divisions hampered the work of the committee. (Image no. 06-1891a courtesy National Archives)
Despite laying the groundwork, debate on the judicial department article consumed almost a week of the convention. Some attributed this to the fact that the committee tried to draft a more original article than typical in the convention. Others looked to the number of lawyers involved or the fact that debate occurred early in the convention before increasingly strict limits on the length of speeches were imposed. Footnote 2 But some delegates may also have lacked confidence in the committee chairman, Democrat George Williams. One letter writer to the Portland Democratic Standard newspaper complained that "Williams has shown himself a very weak man in the Convention. His Judiciary Bill has been cut all to pieces by the Convention.—Hardly any report of the committee has been treated with more contempt than has that made by the Hon. G.H. Williams." Apart from the writer's judgments about Williams, the committee did suffer from significant internal divisions and left a number of unanswered questions in the article that was reported to the convention. Footnote 3

Still other factors came into play to extend the debates. Delegates recognized that even minor judicial positions carried substantial power and represented significant forms of public employment, therefore bringing with them important political advantage. These ramifications became clear when Williams proposed deviating from the existing territorial system of probate courts and county commissions. Instead, Williams argued for an enlarged county court that would consolidate the two bodies into one with an elected county judge. He predicted this would allow for more economical and efficient operation while eliminating confusion over local legal authority. Footnote 4

Anti-Democrats countered that the change would concentrate too much power in one man who, given the current political imbalance, would most likely be a Democrat. They worried that the county judge would be granted nearly unchecked power over local public rights and private property. Anti-Democrats charged that the move was another example of the ruling Democrats penchant for placing their own self-interests over the public good. Instead of consolidating power, they insisted the judicial system would benefit from an expansion through the creation of a municipal court of record. The Democrats held firm and dismissed the idea, but not before being accused of conspiring to create a "judicial monarchy." Footnote 5

The Facts and the Law

A drawing of a panel of jurors seated
Delegates engaged in a long debate on whether gentlemen of the jury (no women could sit on a jury in 1857 Oregon) would be allowed to determine both the facts and the law. (Image courtesy West Virginia Archives & History)
Meanwhile, the Oregonian reported that "one of the most interesting, lengthy, and animated discussions" of the convention rose from the question of whether juries should decide both the facts and the law related to criminal cases. The main debate pitted anti-Democrat Thomas Dryer against the Democratic insider and Supreme Court Justice Matthew Deady. Both agreed the jury should decide the facts, but Dryer argued that members of a jury were just as capable of understanding the law "as any judge who ever sat upon the bench." He claimed judges were too apt to concentrate power in their own hands while they "mystified and misconstrued the law." And, he essentially accused judges of dereliction of duty, saying that "murders had been committed in this territory, but only one man has been hung, and he was crazy." Deady and his supporters countered that "unscrupulous lawyers" could easily mislead juries about the meaning of the law. After considerable debate, the two sides reached a compromise that called for juries to determine both the facts and the law "under the direction of the court as to law, and the right to a new trial as in civil cases." Footnote 6

Defining Legal Functions 

A portrait of Reuben Boise
Reuben Boise argued that grand juries were cheaper and more effective than magistrates. (Image courtesy Yamhill County Circuit Court)
The convention struggled with other questions related to legal functions and logistics. Delegates debated whether or not to have grand juries. Reuben Boise claimed grand juries were cheaper than the alternative system of using a magistrate and represented "the most vigilant system of police and most efficient enforcement of criminal law we could have." Others, such as David Logan, contended that prior abuses showed that grand juries should be abolished, saying that "in this age of liberty and light such inquisitions were a disgrace to a country boasting of its freedom." Delegates finally decided to create grand juries and set the number of members at 7 after debating memberships ranging from 5 to 15. Footnote 7 Following more long and contentious exchanges, other legal system provisions were set. The jurisdictional boundaries between courts were defined; the number and terms of the elected supreme court justices was resolved; and salaries for judges were set.

A Bill of Abominations?

But the path to completion of articles that related to the judicial branch was littered with rhetorical excess. Anti-Democrat David Logan opposed the judiciary article, calling it "a bill of abominations, a running sore designed to suck out the substance of the people...." Footnote 8 Likewise, Thomas Dryer castigated the committee on the judiciary for the product they reported to the convention and insisted that it be sent back to the committee for more work: "They have brought forth a thing here imperfect, deformed, unfinished, and born before its time; so lame that even its very friends balk as it comes in here. I move that the report be referred back to the committee, that they may perfect it." The Democrats refused, leading Dryer to mockingly declare:

Despite the intensity of the rhetoric, in the end, the convention approved a judicial article that has been judged by at least one modern observer to be nothing more than "unremarkable." Footnote 10


  1. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 172.
  2. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 623.
  3. Claudia Burton, "A Legislative History of the Oregon Constitution of 1857—Part II," Willamette Law Review 39 (2003): 393-394.
  4. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 175-176.
  5. Ibid.
  6. Carey, Oregon Constitution, 310-314.
  7. Ibid., 212-214.
  8. Ibid., 199.
  9. Ibid., 187-188.