A History of Oregon, 1792-1849 Part 49

SECTION 2. That if any person shall hereafter sell, barter, give, or trade any ardent spirits of any kind whatever, directly or indirectly, to any person within the Territory of Oregon, he shall forfeit and pay the sum of twenty dollars for each and every such sale, trade, barter, or gift, to be recovered by indictment in the County Court, or before a justice of the peace, without the form of pleading.

SEC. 3. That if any person shall hereafter establish or carry on any manufactory or distillery of ardent spirits in Oregon, he shall be subject to indictment before the County Court, as for a nuisance, and if convicted, he shall be fined the sum of one hundred dollars, and the court shall issue an order to the sheriff, directing him to seize and destroy the distilling apparatus, which order the sheriff shall execute.

SEC. 4. Whenever it shall come to the knowledge of any officer of this government, or any private citizen, that any kind of spirituous liquors are being distilled or manufactured in Oregon, they are hereby authorized and required to proceed to the place where such illicit manufacture is known to exist, and seize the distilling apparatus, and deliver the same to the nearest district judge or justice of the peace, whose duty it shall be immediately to issue his warrant and cause the house and premises of the person against whom such warrant shall be issued to be further searched, and in case any kind of spirituous liquors are found in or about said premises, or any implements or apparatus that have the appearance of having been used, or constructed for the purpose of manufacturing any kind of spirituous liquors, the officer who shall have been duly authorized to execute such warrant shall seize all such apparatus, implements, and spirituous liquors, and deliver the same to the judge or justice of the peace who issued the said warrant. Said officer shall also arrest the person or persons in or about whose premises such apparatus, implements, or spirituous liquors are found, and conduct him or them to said judge or justice of the peace, whose duty it shall be to proceed against such criminal or criminals, and dispose of the articles seized according to law.

SEC. 5. All the fines or penalties recovered under this act shall go, one-half to the informant and witnesses, and the other half to the officers engaged in arresting and trying the criminal or criminals, and it shall be the duty of all officers into whose hands such fines and penalties may come, to pay over as directed in this section.

SEC. 6. This act shall not be so construed as to prevent any practicing physician from selling such liquors for medicines, not to exceed half a pint at one time.

SEC. 7. That it shall be the duty of the secretary to publish this act in the first newspaper published in Oregon.

I, John E. Long, secretary of Oregon, do hereby certify that the foregoing act on ardent spirits is truly and correctly revised by me.

JOHN E. LONG, Secretary.

It will be seen in the final vote, that Foisy at first voted against this bill; but Hendricks and B. Lee changed their vote and Foisy changed his; thus the liquor law remained as it was, and was published February 5, 1846, and remained in force till Sat.u.r.day, December 19, 1846. On December 4 of that year, the governor called the attention of the Legislature to this law, in the following language:--

"The act pa.s.sed at the last session of the Legislature, ent.i.tled 'An Act to prevent the introduction, sale, and distillation of ardent spirits in Oregon,' is one I should recommend for revision; there are several points that are thought to be defective. The organic law provides that the Legislature shall have power to pa.s.s laws to regulate the introduction, manufacture, or sale of ardent spirits.

It is held that the power to prohibit the introduction, manufacture, or sale is not granted by the organic law. Another objection is that the fines collected under the act shall go, one-half to the informant and witnesses, and the other half to the officers engaged in arresting and trying: in fact, making the witnesses and judges interested in the case. The fourth section makes it the duty of any officer, or any private citizen, to act whenever it shall come to their knowledge that any kind of spirituous liquors are being distilled or manufactured in Oregon. It would be much better if it were made the duty of the sheriff of each county to act, whenever he should be informed that any liquor was being made or sold in his county, and authorize him to raise a sufficient _posse_ to aid and a.s.sist him in enforcing the law. We have, as a community, taken a high stand in the cause of temperance; among our earliest efforts may be found the abolis.h.i.+ng of ardent spirits from our land, and to this, in a great measure, may be attributed our peace and prosperity. No new country can be pointed out where so much harmony prevailed in its first settlement as in this: laws, we had none, yet all things went on quietly and prosperously. I have no doubt if ardent spirits are kept within their proper bounds, we shall continue prosperous.

"It is said by some we have no right to say what a man shall make or what he shall not make; yet, we find, in all large cities, certain manufactories are forbidden to be carried on within the limits of the city, because they annoy the inhabitants, and hence are declared to be public nuisances, and by law are compelled to be removed; and, if the city increase and extend to the place where they are relocated, they are removed again. Intoxicating drink is an enormous public injury and private wrong; its effects, in every way, shape, and form, are evil, and therefore should be restrained within proper limits by law. It deprives the wife and children of the inebriate of the support and protection they have a right to expect from him; it deprives the community of the labor which const.i.tutes a nation's wealth, for it is a well-known fact that a nation's wealth is made up of individual labor, and every day, therefore, lost by the laborer, caused by the effects of alcoholic drink, is a loss to the community at large. Persons who have become habitually addicted to ardent spirits, hearing that we had excluded the poison from our land, and, believing they never could be free if they remained near its influence, have left their homes and crossed the Rocky Mountains to escape the ruin that threatened them. Shall _they_ be disappointed? During the last year, persons taking advantage of the defect in our law, have manufactured and sold ardent spirits. We have seen the effects (although the manufacture was on a small scale) in the midnight carousals among the Indians in our neighborhood, during their fis.h.i.+ng season, and while they had property to dispose of; and, let me ask, what would be the consequences if the use of it should be general in the country and among the different tribes of Indians in the Territory? History may, hereafter, write the page in letters of blood! And what are the consequences, as presented to us in the history of older countries, of an indiscriminate use of ardent spirits? Almshouses, hospitals, prisons, and the gallows. I would, therefore, recommend that but one person, and that person a physician, be authorized to import or manufacture a sufficient quant.i.ty to supply the wants of the community for medicinal purposes; to dispose of no liquor except when he knows it to be necessary, or on an order from a regular physician, stating that the person applying stands in need of it for medicinal purposes; and to physicians to be used in their practice; the person so empowered to import, manufacture, and sell, to keep a record of the quant.i.ty manufactured or imported; also, a record of the quant.i.ty sold, or disposed of, and to whom, and name of physician on whose certificate given. This would be attended with but little trouble, and might be required to be given under oath.

Many articles require alcohol to dissolve them; this could be done by taking the article to the person appointed and having the alcohol put into the ingredients in his presence. Section fifth I would recommend to be altered, so that the fines should go one-half to the informer, and the other half into the treasury. I would recommend that the penalties be increased. If the indiscriminate sale of liquor be admitted an evil, no good citizen can wish to be engaged in it. Why should the majority suffer to benefit a few individuals?

"I have said more on this subject than I should have done, did I not fear an attempt will be made to break down the barriers raised by the early settlers of this land. Much of our prosperity and happiness as a community depends upon your action in this matter."

I am inclined to think that the governor was misinformed or mistaken in the statement that liquor had been manufactured in the settlement otherwise than by drugs and a composition called _rot-gut_, which there were men in the country base enough to produce. Had the governor been more energetic and taken the matter in hand, no manufacturing of liquors would have been allowed. He seems to have thrown himself back upon the faults of the law as an excuse for not seeing that it was executed as it should have been, and as it was executed in other places. Some of this drugged liquor was brought to Astoria by one George Geere, of Dr. White notoriety, and the citizens of Clatsop Plains being notified of the fact, came over prepared for a fight, and found Geere, with his liquors, his pistols, and a seven-shooter rifle. They took him and his pistols and rifle, also his two kegs, and several bottles of liquor. The liquor they turned out on the ground,--took Geere before Esquire Tibbetts, and gave him a jury trial before six men of his own choice, who found him guilty. He was fined one hundred dollars and costs of suit, which was all given, by unanimous consent, to the county. When such a man as Governor Abernethy could excuse himself from acting and enforcing a law, because he thought the distribution of the fines imposed made the officers and witnesses interested persons, it is not surprising that men of no principle should engage in destroying their fellow-men. The fact is, that the men whom the people had honored and trusted with their legal and executive duties were dest.i.tute of the firmness requisite to the position they occupied, with some few honorable exceptions. The people generally were in advance of their leaders in sustaining good and wholesome laws, hence but few cases of lawsuits or quarrels occurred.

We will now give what we conceive to be the cause of the failure of the law.

By a reference to the organization of the house in December, 1845, it will be seen that the Hudson's Bay Company was represented by Messrs.

Dr. W. F. Tolmie, Chamberlain, McDonald, Newell, and Peers. The liquor interest was represented by Messrs. Boon, Hall, Hembree, Looney, Meek, Summers, Straight, T. Vault, Williams, and the Speaker. Six of the last-named representatives should have been fined for violations of the law on a small scale, and all of the first on a large scale, as connected more or less with the Hudson's Bay Company, and selling and giving to their men and Indians.

While the Hudson's Bay Company yielded a _quasi_ a.s.sent to the organization, and had their representatives in the Legislature, they were using their influence to curtail the privileges of American citizens. They were ready to vote against the manufacture and sale of liquors, while they were constantly bringing it to the country in their s.h.i.+ps, and distributing it to suit their trade.

The composition of the house was peculiarly American and antagonistic to the Hudson's Bay Company. Any measure that gave to the company any advantage, such as it was urged the prohibitory law did, could not stand. Hence the friends of prohibition had to yield the point, on the ground of self-defense for national rights, and not from a disposition to consider the law unjust or improper. In other words, they licensed and sustained a great evil, to combat a privilege of equal evil, claimed and used by a foreign monopoly in our midst.

When we take into account the facts as stated by the governor in his message, the actual condition of the country, the temporary nature of our government, and all the combinations that were forming at the time the license law was pa.s.sed, I think all will join with me in condemning the course of the men who cursed the country with such a law. It is a.s.serted that the organic law provided that the Legislature should _regulate_ this traffic. Very true; which they did by placing it in the hands of the practicing physician, where it belongs, and nowhere else.

But these wise Solons of 1846 came to the conclusion that three, two, or one hundred dollars was ample pay to the country for the loss of any man in it. That for three hundred dollars the whole country might be filled with poisonous _rot-gut_, and for two hundred the wholesale business might go on, while for one hundred the miserable victims of the business could be turned loose to degrade themselves and blight the hopes of kindred and friends. I can count a hundred victims who have lost one hundred dollars' worth of property for every dollar received by the Territory, besides their own lives, in consequence of this traffic. I can count five hundred families that have suffered poverty and want, insult and abuse, purely chargeable to this _regulating_ law of these men.

We read in histories of the church, that the pope of Rome sold indulgences to commit certain sins which by the common law would be considered crimes, such as adultery, theft, and even murder. The price of the indulgence was according to the crime to be committed. This law proceeds upon the principle of the amount of profits in the business, while its nature and effect upon the community is lost sight of. Or, in other words, the government sells the indulgence to commit the crime proposed by the manufacturer or wholesale and retail dealer. While the former law admitted that liquor as a medicine might be useful, and placed it in the hands of the practicing physician, the license law puts each seller under a one thousand dollar bond to keep a quiet house. They were ready to license _h.e.l.ls_ all over the land, provided the keepers would bind themselves not to violate the sanct.i.ty of the Sabbath. The morality and political economy of the business is forced to be satisfied with the amount paid as per law provided.

This act, as a matter of course, opened all the liquor shops of the Hudson's Bay Company and of all the unprincipled men in the country. To give a better idea of this liquor question, a letter of James Douglas, found in No. 10, volume 1, of the _Oregon Spectator_, June 11, 1846, is given. Mr. Parker, in his stump speech, alluded to the liquor law, and a.s.serted that it was daily violated by the Hudson's Bay Company. Mr.

Douglas attempts to refuse the charge and sustain the law. The italics in the following letter are the author's:--

"MR. EDITOR,--In Mr. Parker's address to the electors of Clackamas County, delivered at the meeting lately held in Oregon City, as reported in the _Spectator_ of the 28th of May, I observe that he is pleased to point out Mr. Douglas, a judge of the County Court, who, he understood, was in the habit of selling ardent spirits.

This may have suited Mr. Parker's purpose, while attempting to establish a position which appears to be a favorite with him, 'that the oath of office binds a man to do just as he pleases!' As it can not, however, be supposed that I admire the mode of ill.u.s.tration he has chosen, and as I also happen to entertain a _very different opinion_ touching the force and propriety of that oath, I hope it will not be considered a breach of courtesy on my part, to offer, through the medium of your respectable paper, a direct and _unqualified denial of this charge of rum-selling_, in the only sense it is plainly meant to be received, and can be considered at all applicable to the subject in question. As a particular favor, I ask Mr. Parker to bring forward a single proof in support of the a.s.sertion he has so wantonly advanced. I refer him to all his fellow-citizens. I ask him to search the country from one extremity to another, and to put the question to each individual member of the community with the absolute certainty that not one person will be found who ever purchased ardent spirits from Mr. Douglas. A stranger in the country, evidently unacquainted with its early history, Mr. Parker may not have been informed that the members of the Hudson's Bay Company have for many years past uniformly discouraged intemperance" (by a regular daily allowance of liquor to their men, as we shall see Mr. Douglas says) "by every means in their power, and have also made great and repeated pecuniary sacrifices to prevent the sale of ardent spirits in the country: an article, moreover, which forms no part of their trade, either with the white man or the Indian." (See Mr. Dunn's book, in which it is a.s.serted the company sells to Indians, and Fitzgerald, page 162).

"Mr. Parker does not indeed pretend to speak from his own personal experience of the fact, but on the authority of others; and should any doubt still linger in his mind with respect to the correctness of what I have just said, he may perhaps have no objection to seek other means of arriving at the truth; suppose, for instance, he was to try the experiment of negotiating a purchase, I venture to predict he would soon be convinced that Mr. Douglas is not in the habit of selling ardent spirits.

"But let us inquire a little further into this matter. What could have induced a person of character to hazard an observation in public, which, he must know, would, if false, be as openly exposed.

Mr. Parker must have had some grounds for his a.s.sertion; he may possibly have heard, or he may have supposed that her Majesty's s.h.i.+p _Modeste_ was daily receiving supplies at Fort Vancouver. If, with reference to these supplies, he had told his hearers that her Majesty's s.h.i.+p _Modeste_, now stationed at Fort Vancouver, had, with other supplies for s.h.i.+p use from the stores of the Hudson's Bay Company, received several casks of rum; or if, referring to the company's own s.h.i.+ps, he had stated that a _small allowance of spirits is daily served out to the crews_ of the company's vessels; and that other cla.s.ses of the company's servants, according to long-accustomed usage, receive, on certain _rare occasions_, a similar indulgence, he would have told the _plain and simple truth_, and his statement would not this day have been called in question by me.

"These acts, which I fully admit, and would on no account attempt to conceal, can not by the fair rules of construction be considered as infringing upon any law recognized by the _compact which we have agreed to support_, in common with the other inhabitants of Oregon.

[The same argument is used to justify Mr. Ogden in furnis.h.i.+ng powder and arms to the Indians at the commencement of the Cayuse war.]

"The framers of these laws, with a decree of wisdom and foresight which does them honor, never entertained the idea that a person, in becoming a member of the compact, thereby relinquished his _distinctive national character_.

"On the contrary, _British subjects_ and citizens of the United States, casting aside every shadow of illiberal prejudice, extended to each other the right hand of good-fellows.h.i.+p, for the purpose of mutual protection, to secure the peace and promote the prosperity of the country, until protected by their respective governments.

The compact was formed and perfected upon that principle, and can rest with security upon no other foundation.

"We are pledged, and do faithfully intend to support the organic laws. They do not bind us to violate pre-existing engagements with our servants, nor to withhold from the officers of our government supplies of whatsoever kind the company's stores can provide. _In the high character of the latter we enjoy the fullest security against abuse to the detriment of the country._ With all other parties we have most rigidly, and shall continue to enforce the prohibitory statutes of Oregon. My wish in addressing you, Mr.

Editor, is to set Mr. Parker right in respect to this matter of rum-selling, and the people may rest a.s.sured that if my wishes could influence the community, there would never be a drunkard in Oregon.

"JAMES DOUGLAS."

Mr. Parker's answer, which, like the letter of Mr. Douglas, is addressed to the _Spectator_, says:--

"MR. EDITOR,--Our friend Mr. Douglas, in the _Spectator_ of the 11th instant, denies, in the most unqualified terms, the charge of rum-selling at Vancouver, and challenges me to the proof of the a.s.sertion, by calling individually on all of our fellow-citizens for testimony; and no other alternative is left me but to proceed in accordance with his request; he will, I am sure, pardon me if I seek this among the highest authorities, and I will produce one at least whose veracity will not, I am sure, be called in question by our friend.

"When I, in my speech, adverted to the fact that rum was sold at Vancouver, contrary to law, the statement was based on the thousand-tongued rumor, and I so qualified my remarks. But in Mr.

Douglas's confession, found in the paper alluded to, the matter of doubt is settled, and we are now furnished with the authority of no less a personage than Mr. Douglas himself. Hear his testimony. 'If,'

says he, 'with reference to these supplies, he had told his hearers that her Majesty's s.h.i.+p _Modeste_, now stationed at Fort Vancouver, had, with other supplies for s.h.i.+p use from the stores of the Hudson's Buy Company, received _several casks_ of rum; or if, referring to the company's own s.h.i.+ps, he had stated that a _small allowance of spirits is daily served out to the crews_ of the company's vessels; and that other cla.s.ses of the company's servants, according to long-accustomed usage, receive, on certain rare occasions, a similar indulgence, he would have told the plain and simple truth,' etc.

"These facts, Mr. Douglas, who has charge of the trading-post at Vancouver, fully admits, and upon his testimony in the matter I place the most implicit confidence. It was not my intention to charge our friend with having kept a tippling-shop at Vancouver, and I wish to correct such, if any there are, who may have come to such a conclusion; but I confess, I had not supposed that the law in relation to ardent spirits (and which may be found in the first number of the _Spectator_) had been so wantonly disregarded. We know, from personal observation, that rum in considerable quant.i.ties had found its way among our citizens from some quarter, and the disclosure here made furnishes a key to the mystery, and we are now broadly told that _casks of this article_ have been furnished to her Majesty's officers stationed in Oregon, but that _in their high character we enjoy the fullest security against its abuse, etc._

"And now, my dear sir, having heard much of the hollow and ceremonious professions and hypocritical grimaces of courts, and men in high places, and disgusted with every thing that savors of aristocratical or monarchical parade, and smitten with the love of republican simplicity and honesty, I can not admit that rank or men in high places are guaranteed against our laws, nor are they so framed as to justify such a conclusion. Raised as I was under these simple inst.i.tutions, which tend to bring all on an equality, I can not perceive those _high guaranties_ or _pledges_ which are said to emanate from rank or station in high places in society. With us, men give pledges of honor and character, alone from their moral conduct; and the baccha.n.a.lian carousals (one was a most disgraceful drunken row kept up for several days by the officers of the _Modeste_, in honor of the Queen's birthday) which came off in the Tualatin Plains on Vancouver rum, last winter and spring, at the expense of the good morals of our farming community, gave me abundant and additional evidence to admire our simple and republican usages, while it serves as a moral worthy the consideration of a prince, or the strongest appendage of n.o.bility. Our laws make no distinction in favor of the officers on board of her Majesty's s.h.i.+p _Modeste_, nor of the Hudson's Bay Company's servants. If their s.h.i.+ps visit our ports, our laws will protect them, and, according to the usages of all nations, we expect them to submit to their provisions; but should these officers, through the plenitude of their power, determine to disregard our laws, it certainly could find no justification with one filling the high judicial station which Mr. Douglas occupies. He has sanctioned our law-making authority by accepting one of the highest judicial offices under our organization. According to his own confession, he has disregarded the law, not only by giving in small quant.i.ties, but by selling ardent spirits by the cask; nor can he find justification by dealing it out under pre-existing contracts to the servants of the company. To admit that principle, dealers in this article would only be required, when the prohibitory law was about being pa.s.sed, to contract for the supply of all their old customers, and thus defeat the object and intention of the law by a pre-existing contract. And as for the argument of long-existing usages, that pays the poorest tribute of all. Why, the very toper may plead his long indulgence in the use of this article, with as much propriety. I should not have noticed the subject again, but for my anxious desire that the matter should be fairly placed before the public.

"SAMUEL PARKER."

These two laws, and the two communications we have given, place the temperance question fully before the reader. The communication of Mr.

Douglas shows the position and feelings of the English and the Hudson's Bay Company in relation to our laws, as also the liberty they claimed to violate them whenever it suited their interest or their convenience. Mr.

Douglas says, "_with all other parties we have most rigidly, and shall continue to enforce the prohibitory statutes of Oregon._" It also shows another fact. _"The Modeste, now stationed at Fort Vancouver," is our_ (the company's) protection, and you must not attempt to enforce a law upon English subjects, or English s.h.i.+ps that enter the rivers or ports of the country. To say that many of us did not feel keenly this _taunt_, and almost despair of securing this vast country from the rapacious mouth of the crouching lion, whose drunken, beastly representatives were distributing their rum to every family that would receive them, would not be true.

When their representatives entered our legislative councils, the most stupid of its members understood their object. They wished to make laws for Americans. Their own people needed no laws, and no other government than such as was provided for them by the Hudson's Bay Company. The reader is already informed how those laws were enforced.

Dr. Tolmie, who at the present time (1870) stands at the head of the company in Vancouver Island and British Columbia, presented the following resolution to the house on the sixth day of the session, showing the true position of the English element:--

"_Resolved_, That the judiciary committee be discharged from further duty, as the present Legislature deems it inexpedient to organize the judiciary at the present time, in any manner different from the present organization."

By a reference to the journal of the house, we find Dr. Tolmie to be a member of the judiciary committee. Four days after, we find this same gentleman presenting another resolution:--

"That the Legislature deems it inexpedient, at the present time, to legalize the manufacture and sale of ardent spirits."

_Yeas_--_Chamberlain_, _McDonald_, and _Tolmie_--3. _Nays_--Boon, HALL, Hembree, LOUNSDALE, LOONEY, Meek, _Newell_, _Peers_, Summers, Straight, T. Vault, Williams and the Speaker--13. Hudson's Bay Company men in _italics_; doubtful, in SMALL CAPITALS.

On the motion of Newell to lay the bill to regulate the manufacture and sale of ardent spirits on the table, it stood: _Yeas_--Chamberlain, Hall, Lounsdale, Looney, McDonald, Newell, and Tolmie--7. _Nays_--Boon, Hembree, Meek, Summers, Straight, T. Vault, Williams, and the Speaker--8. Peers absent.