As appeared in The Hillsboro Argus and elsewhere on Feb. 12, 2014 —
By R. Gregory Nokes —
The observance of Black History Month this February shouldn’t overlook how Oregon’s black history was shaped by so-called exclusion laws, aimed at prohibiting African Americans from settling here.
These laws, although not widely enforced, sent a message that African Americans weren’t welcome. Along with other discriminatory legislation, including restrictions on land ownership, the exclusion laws help explain why there were, and are, so few African Americans in Oregon.
There were three such laws. Incredibly, the third of these was written into Oregon’s 1857 Constitution, where it remained until 1926.
The first exclusion law, sometimes referred to as “Peter Burnett’s lash law,’’ was enacted by Oregon’s provisional government in 1844. It provided that a free black who refused to leave would be subject to as many as thirty-nine lashes. The law was promoted by Burnett, a Missouri settler who headed the provisional government’s legislative council, and later became California’s first governor.
It’s doubtful this law was ever enforced. Deemed overly harsh, it was amended later that same year to substitute a forced labor punishment, still a severe penalty, and was entirely repealed in 1845 after human rights-minded Jesse Applegate succeeded Burnett on the council.
The second law, enacted by the Territorial Legislature in 1849, was a flat prohibition against blacks coming to Oregon. At least one African American, Jacob Vanderpool, was expelled in 1851.Three others were targeted, including Abner Francis, who wrote about Oregon’s racial attitudes for abolitionist Frederick Douglass’s newspaper. Francis and the others were allowed to stay, and the law was repealed in 1854.
The third law was written into Oregon’s 1857 Constitution. It was approved overwhelmingly by Oregon voters — all white males — at an election in which the Constitution was also approved. Oregon thus became the only free state admitted into the union with an exclusion clause already in its Constitution, although exclusion laws did exist elsewhere.
The clause, which became Section 35 of the Bill of Rights, read:
No free negro or mulatto not residing in this state at the time of the adoption of this constitution, shall come, reside or be within this state or hold any real estate, or make any contracts, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all such negroes and mulattoes, and for their effectual exclusion from the state, and for the punishment of persons who shall bring them into the state, or employ or harbor them.
Note the word “free.’’ It was a qualification that would have allowed African American slaves, had voters approved a companion clause legalizing slavery. No, that’s not a misprint: Oregon voters cast ballots at the same 1857 election on whether to also authorize slavery, although they decisively voted it down.
Slavery was a hot issue in Oregon at the time of statehood. Many of Oregon’s early leaders were pro-slavery, among them Matthew Deady, who presided over the 1857 Constitutional Convention, and who was once described “as the point man for slavery’’ in Oregon. Deady also served as U.S. District Court Judge in Portland from 1859-1883. Another slavery sympathizer was Joseph Lane, Oregon’s first territorial governor and one of its first U.S. senators. Lane, for whom Lane County is named, ran for vice president on a slave state ticket with John Breckinridge of Kentucky in 1860, the election won by Abraham Lincoln.
Oregon had had a law prohibiting slavery from the earliest days of its provisional government in 1843. However, it wasn’t enforced, and a number of early settlers from Missouri came with one or more slaves to help work their new Willamette Valley farms. In 1844, the Peter Burnett-led legislative council amended the law to allow slaveholders two years to free male slaves and three years to free female slaves. Among the Oregon slaveholders was one of this author’s ancestors who brought a slave named Reuben Shipley to Benton County in 1853.
While there is no accurate count, the author has identified thirty-seven slaves in Oregon in the pre-Civil War period, and estimates there were at least a dozen more. It appears that most, including Reuben Shipley, were freed within a few years, although some were held much longer.
This sympathetic attitude toward slavery by many of Oregon’s early leaders explains why exclusion laws were applied to “free’’ African Americans, thereby leaving the door open for white settlers who wanted to bring slaves. The laws didn’t apply to the few blacks already in the region. In 1860, Oregon’s black population was just 128 in a total population of 52,465.
Evidence that the exclusion clauses deterred black settlers is not hard to find. At least two free African Americans, George Bush in 1844 and George Washington in 1850, settled north of the Columbia River in present-day Washington where the exclusion laws, then in effect, were less of a threat. Both men became major landholders. George Bush farmed a large acreage south of Olympia in what is today known as Bush Prairie. George Washington is regarded as the founder of Centralia.
John Minto, a white settler who traveled on the Oregon Trail with Bush in 1844, quoted him as saying “if he could not have a free man’s rights” in Oregon, “he would seek the protection of the Mexican government in California or New Mexico,’’ although Bush turned north instead.
When voters finally removed the exclusion clause from Oregon’s Constitution in 1926 — a previous attempt in 1900 had failed — The Oregonian of Nov. 3, 1926, reported the repeal in a single paragraph, saying the clause was “objectionable and obsolete.’’
Peter Burnett, who as governor of California, failed to win enactment of an exclusion clause in that state, lamely explained in later years why he favored banning African Americans. He said that after years of subjugation as slaves, he hadn’t thought it possible for blacks to achieve anything positive in their lives. “Had I foreseen the civil war, and the changes it has produced, I would not have supported such a measure but at the time I did not suppose such changes could be brought about.’’