Slavery on trial in the oregon territory

Exclusion Laws

The Exclusion Laws

COLUMBIA MAGAZINE, THE QUARTERLY PUBLICATION OF THE WASHINGTON STATE HISTORICAL SOCIETY – WINTER 2014-15

Oregon’s Early History of Racial Inequality
By R. Gregory Nokes

“African Americans Not Wanted Here” was the explicit message sent through the country in the early years of white settlement in Oregon. It was a message virtually guaranteeing that Oregon would develop into a nearly all-white state. From the arrival of the first major wagon trains from Missouri in 1843 and 1844, settlers imposed exclusion laws prohibiting African Americans from settling in what was then known as the Oregon Country. Some came anyway, but not many.

Oregon created three exclusion laws: in 1844, 1849, and 1857. While not widely enforced, these laws—along with such other discriminatory legislation as restrictions on land ownership and voting—help explain why there were, and still are, so few African Americans in Oregon. In 1860, the year after Oregon achieved statehood, its black population was just 128 in a total population of 52,465, and those few blacks included several dozen slaves.

To its discredit, Oregon stood as the only free state admitted into the Union with an exclusion clause in its constitution. Approved by white male voters on November 7, 1857, as Section 35 of the proposed state’s Bill of Rights, it 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.

Although never enforced, the law remained part of the Oregon Constitution well into the 1900s. A sympathetic attitude toward slavery by many of Oregon’s early leaders—although not the overall population—explains why the clause applied to “free” African Americans, thereby leaving the door open for slaves. A separate vote in 1857 to authorize slavery in Oregon was decisively rejected by voters.

Former slave Louis Southworth was brought to Oregon in 1853, while the 1849 exclusion law was still in effect. A gifted violinist, he saved enough money from mining gold and playing his fiddle at dancing schools to buy his freedom. He later homesteaded in Lincoln County.  Photo: oregonencyclopedia.

Former slave Louis Southworth was brought to Oregon in 1853, while the 1849 exclusion law was still in effect. A gifted violinist, he saved enough money from mining gold and playing his fiddle at dancing schools to buy his freedom. He later homesteaded in Lincoln County.
Photo: oregonencyclopedia.

Oregon has taken steps to acknowledge the racist laws and policies in its past. The 1999 state legislature and Governor John Kitzhaber declared a “Day of Acknowledgement” on April 22, 1999, recognizing that Oregon’s history “has been marred by racial discrimination, exclusion, bigotry, and great injustice toward people of color, including Native Americans, African Americans, Latinos, Chinese Americans, and Pacific Islanders.” The legislature resolved “to increase public awareness of racial discrimination and work toward the full participation of racial minorities in all aspects of Oregon life . . . as we work toward a future of racial equality.”

Day of Acknowledgment, Salem, Oregon, April 22, 1999. Photo: Portland Skanner, courtesy Michael Henderson,

Day of Acknowledgment, Salem, Oregon, April 22, 1999.
Photo: Portland Skanner, courtesy Michael Henderson,

One of the major influences behind the 19th century exclusion laws was the attitude of settlers who equated African Americans with slavery. Many of the early settlers were nonslave holding farmers from Missouri and other border states who had struggled in their home states to compete against farmers who used slaves to work their fields. By excluding African Americans, early settlers sought to prevent a similar unfair competitive environment from occurring in Oregon. John Minto, an 1844 pioneer, quoted a farmer from St. Joseph, Missouri, named Wilson Morrison, “‘Unless a man keeps [slaves] (and I won’t) he has no even chance; he cannot compete with the man who does. . . . I’m going to Oregon where there’ll be no slaves, and we’ll all start even.’”

Peter H. Burnett led the first major wagon train from Missouri to Oregon in 1843, and devised Oregon’s first exclusion law, which included a whipping penalty. He went on to be the first governor of the state of California. Photo: Wikipedia.org

Peter H. Burnett led the first major wagon train from Missouri to Oregon in 1843, and devised Oregon’s first exclusion law, which included a whipping penalty. He went on to be the first governor of the state of California.
Photo: Wikipedia.org

The attitude was also clearly expressed by Peter Burnett, one of the leaders of the first wagon train from Missouri in 1843, who devised the 1844 law. “The object is to keep clear of that most troublesome class of population [blacks],” Burnett said. “We are in a new world, under the most favorable circumstances and we wish to avoid most of those evils that have so much afflicted the United States and other countries.”

Prior to Burnett’s arrival, the legislative council of Oregon’s fledgling provisional government had enacted a flat prohibition against slavery in 1843. However, once in Oregon, Burnett became leader of the council and had the law amended to include an exclusion clause and a lashing penalty for free African Americans who refused to leave. It also allowed a slave owner three years to free his slaves. Burnett is not known to have had slaves, so he must have been influenced by those who favored slavery. A handful of settlers in the early wagon trains, including Burnett’s, did bring a few slaves.

As amended, the provisional government’s law against slavery read:

SECTION 1. That slavery and involuntary servitude shall be forever prohibited in Oregon.

SECTION 2. That in all cases where slaves have been, or shall hereafter be brought into Oregon, the owner of such slaves shall have the term of three years from the introduction of such slaves to remove them out of the country.

SECTION 3. That if such owner of slaves shall neglect or refuse to remove such slaves from the country within the time specified in the preceding section, such slaves shall be free.

The effect was to legalize slavery for three years. But the law further provided that once freed, a former slave must leave—a male after two years; a female after three. Refusal would result in a severe punishment:

SECTION 6. That if any such free Negro or mulatto shall fail to quit the country as required by this act, he or she may be arrested by some justice of the peace and if guilty upon trial before such justice, shall receive upon his or her bare back not less than twenty or more than thirty-nine stripes, to be inflicted by the constable of the proper county.

It is doubtful the law was ever enforced. Deemed overly harsh, Oregon voters in 1845 approved a new set of laws that dropped any reference to the exclusion law and the lashing penalty.

Other reasons were given for excluding blacks in this period. Improbable as it now seems, some early white settlers  feared African Americans would somehow unite with Native American tribes to attack the white population. While this was never a realistic threat, one can surmise that behind it were feelings of guilt and fear of retribution over how African Americans had been treated over the years throughout the states and territories. Elijah White, Oregon’s Indian agent, called African Americans “dangerous subjects” in a letter to federal authorities in Washington, DC, on May 1, 1844. “Until we have some further means of protection, their immigration ought to be prohibited,” he wrote. “Can this be done?”

White was responding, at least in part, to what became known as the Cockstock affair in which a Native American named Cockstock quarreled over a horse with two free African Americans, James Saules and Winslow Anderson. The dispute erupted into a shoot-out in the streets of Oregon City in which Cockstock and two whites were killed. Whether justified or not, much of the blame fell on Saules, who had a Native American wife and allegedly threatened to rally Native Americans to retaliate against his accusers. The Burnett-led legislative council enacted the 1844 exclusion law three months later, on June 18. Quintard Taylor, a University of Washington historian, said he viewed enactment of the law more as “a symbol of the evolving attitude toward future black migration, than as a measure that would immediately eliminate or reduce the ‘troublesome’ black population.”

The second exclusion law in 1849 was also linked to conflict with Native Americans. This was the massacre by members of the Cayuse Tribe of Narcissa and Marcus Whitman and 11 others at the Whitman Mission at Waiilatpu, near Walla Walla, on November 29, 1847, and the resulting war against the Cayuse. Enacted by the new Oregon Territorial Legislature on September 21, 1849—Oregon became a US territory in 1848—the preamble declared it would be “highly dangerous to allow free Negroes and mulattoes to reside in the Territory, or to intermix with Indians, instilling in their minds feelings of hostility toward the white race.” The law specified, “It shall not be lawful for any negro or mulatto to enter into, or reside within the limits of this Territory. Providing that nothing in this act shall . . . apply to any negro or mulatto now resident in this Territory, nor shall it apply to the offspring of any such as are residents.”

The law specifically targeted African American seamen on  ships calling in Oregon ports who might be tempted to jump ship. An African American sailor named Jacob Vanderpool was expelled under the 1849 law. Vanderpool had settled in Oregon City after arriving by ship from the West Indies in 1850. He was arrested and jailed in August 1851, found guilty and ordered to leave. Expulsion orders were issued against at least three other African Americans, including two brothers, Abner and O. B. Francis, both free blacks originally from Buffalo, New York, who arrived in Oregon from California. Abner Francis was a colleague of black abolitionist Frederick Douglass, and he wrote of Oregon’s attitudes toward African Americans in an article that appeared in Douglass’s newspaper on December 11, 1851.

Francis said he wanted to alert people around the country:

Even in the so-called free territory of Oregon, the colored American citizen, though he may possess all the qualities and qualifications which make a man a good citizen, is driven out like a beast in the forest, made to sacrifice every interest dear to him, and forbidden the privilege to take the portion of the soil which the government says every citizen shall enjoy.

The latter was a reference to Congress’s Donation Land Claim Act of 1850, which provided up to a square mile of free land for early Oregon setters but excluded African Americans. A group of Oregon citizens petitioned the territorial legislature to allow Francis to stay. Whether or not the petition was a factor, Francis and the others were allowed to stay, and the law was finally repealed in 1854.

Oregon’s exclusion laws also helped steer two well-known free blacks north of the Columbia River. These were George Washington Bush, and George Washington, both of whom came west in periods when exclusion laws were in effect. The Pennsylvania-born Bush had been a prosperous farmer in Missouri. He and his wife and five sons arrived in Oregon in 1844 from St. Joseph, Missouri, traveling with five other families who called themselves “the Independent Colony.” They joined a wagon train led by Cornelius Gilliam. John Minto, who also traveled with the Gilliam party, grew to admire Bush and his accomplishments: “Not many men of color left a slave state so well-to-do, and so generally respected,” Minto wrote. “But it was not in the  nature of things that he should be permitted to forget his color.”

Minto said Bush confided during that trip that 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.” However, after staying the winter in The Dalles, he turned north instead of south, becoming one of the first American settlers—and probably the first black settler— north of the Columbia River. He settled with the other families near the south end of Puget Sound where he lived prosperously on a mile-square farm near present-day Tumwater— Bush Prairie takes its name from him.

For all practical purposes, the 1844 exclusion laws applied only to the region south of the Columbia River—in particular, the Willamette Valley—the destination of most early settlers. Bush may have been influenced in his choice of destination by Dr. John McLoughlin, chief factor of the Hudson’s Bay Company, who was said to be sympathetic to Bush’s situation. McLoughlin had been tasked by the British government to discourage white settlement, particularly north of the Columbia. The Oregon Country at the time was still nominally jointly occupied by Great Britain and the United States, and Great Britain hoped it might retain Washington in a final boundary settlement. However, this was not to be, as an 1846 treaty gave it to the Americans. The presence of Bush and the other American families near Puget Sound helped support the United States’ claim.

The Richard and America Waldo Bogle family, c. 1884. America, a probable slave fathered by a slave owner, was likely related to Oregon Supreme Court Chief Justice John Waldo. Photo: Benton County Historical Society, Philomath, Oregon

The Richard and America Waldo Bogle family, c. 1884. America, a probable slave fathered by a slave owner, was likely related to Oregon
Supreme Court Chief Justice John Waldo.
Photo: Benton County Historical Society, Philomath, Oregon

George Washington, the second known African American to settle north of the Columbia, had been freed from slavery as a child in Virginia. He traveled to Oregon from Missouri with his former slave-owner in 1850, a period when the 1849 law was in effect. They settled in Lewis County, where Washington—unable as a black man to buy land on his own—purchased land from his former owner. He became prominent in his community and is today considered the founder of the city of Centralia.

Technically, Oregon’s exclusion law might have applied to George Washington, as the region was then part of Oregon Territory, established by Congress in 1848. The Washington Territory was established in 1853. Although the 1844 and 1849 laws were repealed, the notion of excluding African Americans remained very much front and center in Oregon’s political agenda, as reflected in the debate over the 1857 Oregon Constitution that prepared the way for statehood in 1859.

No issue was more compelling— or controversial—in the run-up to statehood than whether Oregon would be a slave state, an issue closely tied to exclusion. Some of Oregon’s most prominent early leaders favored slavery, among them Joseph Lane, the first territorial governor and later a candidate for US vice president on a slave state ticket in 1860; and Matthew Deady, a member of the territorial supreme court and later a long-time US district judge in Portland. Deady presided over the constitutional convention, which convened in Salem on August 17, 1857. Writing in 1911, historian Walter Carleton Woodward voiced astonishment that slavery posed “an actual menace to Oregon”:

From this distance, it may seem almost inconceivable that there was any basis for such agitation [for slavery]; that there was any danger of Oregon’s (sic) becoming a slave state. Whatever may be the mature conclusions on this point after the lapse of a half century, the fact remains that this was apparently a very serious danger at the time.

Matthew Deady, described as  “the point man for slavery in  Oregon,” presided over the 1857 constitutional convention that put an exclusion clause in the Oregon Constitution.  Photo: Oregon Historical Society, Portland, #orhi81679

Matthew Deady, described as “the point man for slavery in Oregon,” presided over the 1857 constitutional convention that put an exclusion clause in the Oregon Constitution.
Photo: Oregon Historical Society, Portland, #orhi81679

Deady, described by one critic as “the point man for slavery in Oregon,” argued to a friend on the eve of the convention: “If a citizen of Virginia can lawfully own a Negro (of which there is no doubt) then I as a citizen of Oregon can lawfully obtain the same right of property in this Negro by either purchase or inheritance.” The issue proved so divisive that leaders of the Democratic Party feared it would split the once-cohesive party that had dominated Oregon politics for a decade. Their solution was to avoid debating slavery in the convention and submit the issue directly to voters.

There was no division among the delegates, however, on an exclusion clause. Several delegates, including Judge George Williams, argued for extending an exclusion clause to include Chinese, although some delegates were concerned that sympathy toward the Chinese might cause the clause to fail in its chief aim of excluding African Americans. Delegate Thomas Dryer, editor of the Weekly Oregonian  newspaper, said he would vote to exclude African Americans, Chinese, Hawaiians, and Native Americans because “the association of these races with the white was the demoralization of the latter.” However, the majority favored focusing solely on African Americans.

Part of Article 18 from the Oregon State Constitution, the section outlining slavery and exclusion laws, from the 1857 document distributed to Oregonians. Photo: Oregon Historical Society/ohs.org

Part of Article 18 from the Oregon State Constitution, the section outlining slavery and exclusion laws, from the 1857 document distributed to Oregonians.
Photo: Oregon Historical Society/ohs.org

Only one among the 60 delegates, William Watkins of Josephine County, rose in defense of the African American’s right to live where he chose. In an impassioned speech he said, “The black man in my estimation has as much right to live, eat, drink, read, think, and in the various avenues of life to seek a livelihood and means of enjoyment and happiness as has the proudest Caucasian.” Saying he could not vote for the constitution if it included sending an exclusion clause to voters, he added:

Sir, no power, no conceivable contingency of circumstances, no motives of interest, however great, can induce me to vote either directly or otherwise to sustain a proposition so radically wrong, or even give it my implied assent by submitting it to the people for their approval . . . the free negro has claims upon us which we can neither ignore nor destroy; he was born upon our soil, he speaks our language, he has been taught our religion, and his destiny and ours are eternally linked.

The convention delegates, who were all white males, sent three proposals to Oregon voters: one, whether to approve or disapprove the constitution; two, whether to include a clause legalizing slavery; and three, whether to include a clause excluding African Americans. Voters approved the constitution by a wide margin; disapproved of slavery also by a wide margin, but approved the exclusion clause. The vote on exclusion was 8,640 in favor to 1,081 against, a wider margin than the vote for the constitution or the vote against slavery. Even though the clause was not enforced and lost any legal standing after slavery was abolished nationwide following the Civil War, it nevertheless remained as a statement in the Oregon Constitution until 1926 that African Americans still were not welcome.

R. Gregory Nokes is a journalist with over 40 years of experience, including with The Associated Press and The Oregonian. He is author of two nonfiction histories of little-known events in the Pacific Northwest: Massacred for Gold: The Chinese in Hells Canyon (2009) and Breaking Chains: Slavery on Trial in the Oregon Territory (2013), both published by Oregon State University Press.

 

Exclusion Act and Lash Law, enacted June 18, 1844

An Act in regard to Slavery and Free Negroes and Mulattoes.

Be it enacted by the Legislative Committee of Oregon as follows:

Section 1. That slavery and involuntary servitude shall be forever prohibited in Oregon.

Section 2. That in all cases where slaves shall have been, or shall hereafter be, brought into Oregon, the owners of such slaves respectively shall have the term of three years from the introduction of such slaves to remove them out of the country.

Section 3. That if such owners of slaves shall neglect or refuse to remove such slaves from the country within the time specified in the preceding section, such slaves shall be free.

Slaves 4. That when any free negro or mulatto shall have come to Oregon, he or she (as the case may be), if of the age of eighteen or upward, shall remove from and leave the country within the term of two years for males and three year for females from the passage of this act; and that if any free negro or mulatto shall hereafter come to Oregon, if of the age aforesaid, he or she shall quit and leave the country within the term of two years for males and three years for females from his or her arrival in the country.

Section 5. That if such free negro or mulatto be under the age aforesaid, the terms of time specified in the preceding section shall begin to run when he or she shall arrive at such age.

Section 6. That if any such free negro or mulatto shall fail to quit the country as required by this act, he or she may be arrested upon a warrant issued by some justice of the peace, and, if guilty upon trial before such justice, shall receive upon his or her bare back not less than twenty nor more than thirty-nine stripes, to be inflicted by the constable of the proper county.

Section 7. That if any free negro or mulatto shall fail to quit the country within the term of six months after receiving such stripes, he or she shall again receive the same punishment once in every six months until he or she shall quit the country.

Section 8. That when any slave shall obtain his or her freedom, the time specified in the fourth section shall begin to run from the time when such freedom shall be obtained.

 Act amended on December 19, 1844:

Section 1. That the sixth and seventh sections of said act are hereby repealed.

Section 2. That if any such free negro or mulatto shall fail to quit and leave the country, as required by the act to which this is amendatory, he or she may be arrested upon a warrant issued by some justice of the peace; and if guilty upon trial before such justice had, the said justice shall issue this order to any officer competent to execute process, directing said officer to give ten days’ public notice, by at least four written or printed advertisements, that he will publicly hire out such free negro or mulatto to the lowest bidder, on a day and at a place therein specified. On the day and at the place mentioned in said notice, such officer shall expose such free negro or mulatto to public hiring; and the person who will obligate himself to remove such free negro or mulatto from the country for the shortest term of service, shall enter into a bond with good and sufficient security in Oregon, in a penalty of at least one thousand dollars, binding himself to remove said negro or mulatto out of the country within six months after such service shall expire; which bond shall be filed in the clerk’s office in the proper county; and upon failure to perform the conditions of said body, the attorney prosecuting for Oregon shall commence a suit upon a certified copy of such bond in the circuit court against such delinquent and his sureties.

Entire act effectively repealed on June 26, 1845, with adoption by voters of new Organic Laws for Oregon, which simply prohibited slavery.

 

Exclusion Law enacted September 26, 1849; repealed 1854:

An Act, to prevent Negroes and mulattoes from coming to, or residing in Oregon.

WHEREAS, situated as the people of Oregon are, in the midst of an Indian population, it would be highly dangerous to allow free negroes and mulattoes to reside in the Territory or to intermix with the Indians, instilling into their minds feelings of hostility against the white race: Therefore:

SECTION 1. Be it enacted by the Legislative Assembly of the Territory of Oregon, that it shall not be lawful for any negro or mulatto to come into, or reside within the limits of this Territory: Provided, that there is nothing in this act that shall be so construed as to apply to any negro or mulatto now resident in this Territory nor shall it apply to the offspring of such as are residents, as aforesaid.

SECTION 2. That masters and owners of vessels having negroes or mulattoes in their employ on board of vessels, may bring them into Oregon: Provided, That in so doing, such master or owner shall be responsible for the conduct of such negro or mulatto, during their detention in said Territory, and shall be liable to any person aggrieved by such negro or mulatto.

SECTION 3. No negro or mulatto shall be permitted to leave the port where vessels upon which they are or may be employed shall be lying, without the written permission of such master or owner, unless under their immediate control and superintendence.

SECTION 4. That it shall be the duty of masters and owners of vessels having brought negroes or mulattoes into Oregon, as aforesaid, to cause such negro or mulatto to leave the Territory with such vessel, upon which they shall have been brought into the Territory, or upon some other vessel, within forty days.

SECTION 5. If any master or owner of a vessel having brought negroes or mulattoes as provided for in the second section of this act, into this Territory, shall fail to procure and take the same with them when leaving the Territory, or cause such negro or mulatto to leave as required in the fourth section of this act, such master or owner shall be deemed guilty of a misdemeanor, and punished by indictment in any court having jurisdiction of the same; and on conviction of the same, shall be fined and imprisoned at the discretion of the court: Provided, That the fine in no case shall be less than five hundred dollars.

SECTION 6. If any negro or mulatto shall be found in this Territory, except as hereinbefore provided and except such as may now be permanent residents, it shall be the duty of any judge of justice of the peace, to whose knowledge the same shall come either by the affidavit of any other person, or from their own observation, to issue a warrant for the apprehension of such negro or mulatto directed to any sheriff or constable, or any other suitable person, commanding such officer or other person forthwith to arrest and bring before the officer issuing the warrant such negro or mulatto, who, upon being satisfied that such negro or mulatto is unlawfully remaining in the Territory, shall issue such order for the removal from the Territory of such negro or mulatto as in the opinion of such judge or justice of the peace, shall be best calculated to cause the removal of such person from the Territory.

SECTION 7. If any negro or mulatto shall be found a second time unlawfully remaining in this Territory, he shall be deemed guilty of a misdemeanor, and shall be punished by indictment in any court having jurisdiction thereof, and on conviction, shall be fined and imprisoned at the discretion of the court.

SECTION 8. The Governor of this Territory shall cause this act to be published in the California newspapers and such other newspapers as he may think necessary in order to carry out the spirit of the same.

Passed, September 26, 1849

 

Oregon Constitution Exclusion Clause, approved Nov. 9, 1857:

SECTION 34. 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.

The clause was approved by voters on Nov. 9, 1857 by a vote of Yes, 8,640; No, 1081. Oregon became the only free state admitted into the Union with such a clause in its Constitution. It wasn’t repealed until 1926.

A slavery clause was rejected by a vote of Yes, 2,645; No, 7727. Had it been approved, this clause would have read:

Persons lawfully held as slaves in any state, territory or district of the United States under the laws thereof, may be brought into this state; and such slaves and their descendants may be held as slaves within this state and shall not be emancipated without the consent of their owners.