An Overview of the Convention Process
Salem Welcomes the Convention
The delegates coming from all over the territory were no strangers to Salem as they arrived for the convention in August 1857. Nearly all of them had conducted business of some sort there, be it serving in the legislature, attending court, or interacting with the territorial government. It was only with some hyperbole that a California newspaper writer, in town to cover the convention, said that Salem "is to Oregon what Rome is to Christendom—the point from which emanate mandates that are felt to the outward rim of its jurisdiction."
However, Salem would have looked inconsequential to modern eyes. Still unincorporated, its residents numbered fewer than 1,000. Yet, its layout had betrayed larger ambitions ever since W.H. Willson platted the townsite to include broad avenues and an oversized public square. Surrounding the square were streets bearing the names "Capitol," "State," and "Court" that looked forward to the public buildings that were anticipated with statehood.
By the time of the convention, the growth of territorial government and the rising importance of the California market helped Salem prosper. Government and agriculture dominated but artisans and skilled craftsmen played a growing role in the commercial development of the town. The large Willamette Woolen Mill was nearing completion as the convention adjourned, promising more growth. A mostly male population included a large number of unattached boarders living with nuclear-family households.
Public entertainment came in many forms during the summer of the convention. Shakespearean readings, poetry recitals, and theatrical troupes were among the offerings. Some residents found entertainment by driving off a Mormon speaker with a hail of rotten eggs. But the biggest event of the summer was the "Mammoth Circus, direct from California," boasting the "largest pavilion ever in this territory." The act featured a slack rope performer, a juggler, an "equilibrist" [tight-rope walker], and Master J. Armstrong and his "Incredible Act of Throwing a Double Somersault."(15)
As the middle of August 1857 approached, delegates converged on Salem for the convention that would create a framework for a new state. The political debates in anticipation of the convention had intensified in the weeks before the delegates convened on August 17, with slavery as the dominant issue. But the Democrats rightly feared that full debate on slavery could fatally split the convention even before it started. Instead, they engineered plans for separate and direct votes of the people on slavery and the immigration of free blacks, thereby practically removing the issue from the convention agenda. Largely freed of the paralyzing prospects of making decisions about the "peculiar institution" of slavery, the delegates set about more mundane questions. They started with decisions about the process and organization of the convention.(***)
Read a wildly fabricated account of the opening of the convention.
Not starting from scratch
The delegates knew that there was no need to start their work with a blank slate. Rather, they could pick and choose provisions from constitutions that had come before. Not surprisingly, they were heavily influenced by constitutions from their old home states, mostly in the Midwest. Delegate Frederick Waymire gave voice to this view: “We might as well take old constitutions that the people are familiar with, as to try to strike up into something new, that we know nothing about. If [I] was sent here to form a new Bible, [I] would copy the old one, and if [I] was employed To make a new hymn book, [I] would report an old one—they are better than any [I] could make.” Because of this, he optimistically looked forward to ending the convention in 15 days.(1)
And as luck would have it, Chester Terry, a recent immigrant from Indiana, had carried a copy of that state's constitution with him. The Democrats, at the urging of influential Delazon Smith, agreed to use it as the starting point for the coming deliberations. But through the course of the convention, it became clear that many of the delegates were familiar with the constitutions of other states including Iowa, Wisconsin, Ohio, Michigan, Maine, New York, and others.(2)
Indeed, some would argue that perhaps the Oregon framers relied too much on other states, at the expense of originality. Writing about the convention in 1995, Oregon judge David Schuman dryly distilled their work to its essence: "The sixty drafters, most of whom were farmers, produced a state charter remarkable only for its conventionality and small-mindedness; 172 of its 185 sections were copied from other constitutions, and the thirteen original ones consisted almost entirely of various racial exclusions and measures limiting state expenditures."(3)
The haves and the have-nots
The Democrats, with their strong majority, quickly set out to control the process and move their agenda forward as the proceedings began. Not surprisingly, Salem Clique stalwart Matthew Deady was elected president by a vote of 39 to 15 over anti-Bush Democrat Martin Olds, who was favored by a mix of Whigs, Free-State Republicans, and others. The Democrats also swept other convention offices such as secretary, assistant secretary, sergeant-at-arms, doorkeeper, and printer.(4) Deady then appointed seven-member standing committees to draft articles of the constitution. The committees included executive department, legislative department, judicial department, education and school lands, military affairs, seat of government and public buildings, corporations and internal improvements, boundaries, suffrages and elections, and bill of rights. Befitting his party's numerical advantage, Deady made sure to have plenty of Democrats sitting on each committee and he placed trusted insiders as chairmen of key panels.(5)
Anti-Democrats, while lacking in real power, had plenty to say during the course of the convention on how the majority wielded power. Thomas Dryer, David Logan, and others admitted that the Democrats had the ability to essentially dictate the outcome. But, according to historian David Alan Johnson, they claimed that "the solidarity of the majority party rested only on shaky, and illegitimate, grounds of personal interest, embodied in a spoils system through which Democratic leaders assured personal control by dispensing and withholding patronage crumbs to the rank and file."(6) Early on, the anti-Democrats charged that their opponents were engineering the process to maximize their chances to hold new government offices that would result from statehood. According to a newspaper account, angry discussion led to the charge "that the majority were disposed to 'gag' and 'cram measures down the throats' of the minority."(7)
No official reporter
The first day of the convention the delegates decided not to hire an official reporter of debates, despite several arguments in favor. James Kelly, in proposing a reporter, noted that the expense would be "comparatively trifling," not more than 500 dollars. In his view, "a convention of this character, involving as it does the very organization of the state, happens only once in an age." Saying that it would be "penny wise and pound foolish" to let "this convention pass to oblivion," he argued that they had a responsibility to posterity since the proceedings would be "sought after as a matter of the historical record, and I do think that we ought not let them pass by and go out of the memory of man...."(8) Long-winded orator Delazon Smith added a somewhat ironic argument in favor of a reporter, saying that recording the debates would help preserve decorum because “the knowledge that every word that is uttered within these walls will go upon the record may prove, if there be danger of excess, a check upon those who might be disposed to indulge in improprieties here.”(9)
But the concern for posterity apparently fell victim to the larger interest in frugality and the task of recording the proceedings fell to the newspapers. The convention did keep an official journal but it only rarely documented the substance of the debates. Newspapers carried long accounts of the proceedings and those of the Oregon Statesman and Oregonian were republished in 1926 by Charles H. Carey in The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857. The accounts, considering the strongly partisan viewpoints of the newspapers, are not always reliable. Each reported the speeches favorable to his own paper's position carefully while devoting less attention to opposing views. As time went on, some of the descriptions of long debates were reduced to reports such as "upon this quite a lengthy and animated discussion ensued."(10) Of course, the reporters had their own perspective on speeches that went on "ad infinitum," as the Oregonian reporter described early in the convention:
[NOTE - We have not the time to write out all the speeches made on the present occasion and if any speaker finds himself neglected in this respect, we beg of him to charitably reflect that it is a physical impossibility for one reporter to do the work of eight. There is as much speech-making in the convention thus far, as is usually indulged in in either house of congress, where a corps of eight reporters are employed. We shall endeavor to write out as much of the speeches as we can, according as we find the time.—Reporter.](11)
Moving the proposed articles forward
The process of moving draft articles through the convention generally followed a relatively typical legislative pattern. Thus, in its most simple form, a committee would compose and report a draft article. The text was then given a "first reading" after which it was "passed to a second reading" with no debate. The purpose of the first reading apparently was to offer the committee's draft to the convention as a whole, thus allowing all delegates to formulate arguments and amendments. The second reading presented the text to the convention for serious consideration and debate. Upon motion, the entire convention would temporarily "resolve itself" as a committee of the whole to debate and amend a particular article. The article was then "engrossed" or put in its final form before it was given its third reading and a vote by the entire convention. At the end of the convention, all of the approved articles were "enrolled" or placed into a single document and reapproved together as the constitution. Of course, numerous procedural maneuvers soon surfaced to complicate the path of some of the more controversial articles and added significantly to the length of the debates.(12)
Smaller questions of process
The delegates also settled other issues related to convention process in the first days. For instance, they debated the use of honorific titles (e.g., the honorable Mr. Smith...). Thomas Dryer argued that the practice smacked of "bombastic egotism," saying that "whatever position gentlemen may occupy outside, upon the floor they are all equal." His colleagues agreed, deciding to use a simple "Mr." After considerable debate, the delegates tabled a motion that would have required them to swear an oath of allegiance to the U.S. Constitution. During the discussion, John Kelsay pointed to previous conventions in which oaths were taken without question, but once again, Thomas Dryer rose to ridicule the idea: "Perhaps [Kelsay] may need some sort of shackles or bridles upon his conscience to keep him in subjection. But, sir, I will obey the constitution... [without an oath]."(13) Delegates also chose to do their smoking outside of the convention room and they decided that they could succeed in their work without the services of a chaplain.(14)
*** For a systematic and exhaustive examination of the Oregon Constitutional Convention, see: Claudia Burton and Andrew Grade, "A Legislative History of the Oregon Constitution of 1857—Part I," Willamette Law Review 37 (2001); Claudia Burton, "A Legislative History of the Oregon Constitution of 1857—Part II," Willamette Law Review 39 (2003); and Claudia Burton, "A Legislative History of the Oregon Constitution of 1857—Part III," Willamette Law Review 40 (2004). These articles proceed step by step through the articles of the constitution. They include extensive analysis of contemporary accounts of the convention as well as opinions of various newspaper writers. Most significantly, they tap into previously unresearched resources such as initial committee reports, amendments, and engrossed articles. These documents provide a much fuller legislative history of the convention and in many cases offer new insight into the intent of the framers.
1. Carey, Oregon Constitution, 109.
2. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 172.
3. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 611.
4. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 173.
5. Ibid.; David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 619.
6. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 174.
7. Ibid, 175; Carey, Oregon Constitution, 199.
8. Carey, Oregon Constitution, 59-60.
9. John J. Dinan, The American State Constitutional Tradition (Lawrence, Kansas: University Press of Kansas, 2006) 25.
10. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 622.
11. Carey, Oregon Constitution, 86.
12. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 620-621.
13. Carey, Oregon Constitution, 68-69.
14. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 619.
15. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 66-69.