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The Oregon Donation Act of 1850 and Nineteenth Century Federal Married Women's Property Law
Published online by Cambridge University Press: 28 October 2011
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Almost every state and territory adopted a married women's property act between 1835 and 1850. These acts generally exempted married women's property from attachment by creditors of their husbands, effecting a slight change in the battery of common-law coverture rules that gave husbands management of their wives' real property and ownership of their personal property. Alterations in the roles of women in the family, increases in education of women and growth in the importance of women's public service groups provided an environment sympathetic to initial reforms in married women's property law. In addition, economic panics and depressions affected the family economy, providing an incentive for adoption of rules exempting married women's property from the claims of their husbands' creditors.
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References
1. On the adoption of state married women's property acts, see Chused, Richard H., ‘Married Women's Property Law: 1800–1850,’ 71 Georgetown Law Journal 1359(1983)Google Scholar.
2. 9 Stat. 496 (1950).
3. See Coleman, Peter J., Debtors and Creditors in America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900 (Madison, 1974) 16–36Google Scholar.
4. The Continental Congress passed several resolutions urging the states to cede their western territories to the central government as a capital resource vital to the payment of the nation's creditors. See, e.g., the consideration of a cession resolution of April 29, 1784, Journals of Continental Congress 26 (April 29, 1784) 315–17Google Scholar.
5. Gates, Paul W., History of Public Land Law Development (Washington, D.C., 1968) 49–119Google Scholar.
6. An Ordinance for Ascertaining the Mode of Disposing of Lands in the Western Territory, Journals of Continental Congress 28 (May 20, 1785) 375–81Google Scholar.
7. Gates, Public Land Law, supra note 5, 59–61, 69–72.
8. An Ordinance for the Government of the Territory of the United States North West of the River Ohio, Journals of Continental Congress 32 (July 13, 1787) 334Google Scholar. The Act was extended to the Kentucky and Tennessee Territories in the Southwest Ordinance, An Act for the Government of the Territory of the United States, South of the River Ohio, 1 Stat. 123 (1790), and to the Mississippi Territory, in An Act Supplemental to the Act Entitled ‘An Act for an Amicable Settlement of Limits With the State of Georgia; and Authorizing the Establishment of a Government in The Mississippi Territory,’ 2 Stat. 69 (1800).
9. Males holding a freehold of fifty acres or more could vote. Journals of Continental Congress 32 (July 13, 1787) 334, 337–38Google Scholar.
10. Ibid. 334–35.
11. See Chused, ‘Married Women's Property Law,’ supra note 1, 1392–95, 1404–5.
12. Ibid. 1414–19.
13. See Gates, Public Land Law, supra note 5,121–27. An Act Providing for the Sale of the Lands of the United States, in the Territory Northwest of the River Ohio, and Above the Mouth of the Kentucky River, 1 Stat. 464 (1796). The Land Act of 1796 established the Office of Surveyor General, and began the establishment of a sales bureaucracy in the territories. Land offices were called for explicitly by acts adopted in 1800 and 1804. Both of these acts also reduced the size of plots open for purchase to try to increase sales. An Act to Amend the Act Intituled ‘An Act Providing for the Sale of the Lands of the United States in the Territory Northwest of the River Ohio, and Above the Mouth of the Kentucky River,’ 2 Stat. 73 (1800); An Act Making Provision for the Disposal of the Public Lands in the Indiana Territory, and for Other Purposes, 2 Stat. 277 (1804). The General Land Office was established in 1812. An Act For the Establishment of a General Land Office in the Department of the Treasury, 2 Stat. 716(1812).
14. Absent a look at the huge collection of records at the National Archives, it is not possible to provide definitive data on the gender of land purchasers. But some other materials are available which provide very strong evidence of the early patterns. Some congressional reports included lists of land claimants, providing a convenient, though crude, way to review the participation rates of women. Among the reports are four scattered over about a thirty-five year period from 1811 on. Settlers on Public Lands, H.R. Doc. No. 182, 11th Cong., 3d Sess. (1811); Sundry Statements of the Commissioner of the General Land Office, of the Quantity of Land Sold Under the Provisions of the Act of the 24th April, 1820, H.R. Doc. No. 35, 16th Cong., 2d Sess. (1820); Sale of Lands in the First District of Louisiana, H.R. Doc. No. 113, 21st Cong., 2d Sess. (1830); List of Purchasers of Land at Columbus and Chocchuma in Mississippi in 1833 and 1834, S. Doc. 1263, 23d Cong., 2d Sess. (1834). The 1811 report dealt with applicants under a statute permitting settlers to occupy land as tenants at will until it was later distributed. Only eight of the 407 plots involved applicants who were clearly women. Four others may have been women. (They had names like Francis.) Of the 953 parcels in the 1820 report, only eight were clearly purchased by women. Three others were possibles. The 1820 act was a reform of the nationally applicable land sale laws. Of the seventy-three parcels in the 1830 report, five were purchased by a woman named Mrs. Constance Duneufbourg. The 1834 report contains so many entries it wasn't worth counting. A quick scan revealed very few women. And, of course, no information on marital status was available in these reports. Moreover, Dyer, Albion Morris, First Owners of Ohio Lands (Boston, 1911)Google Scholar includes a list of purchasers at the first New York land sale under the Land Ordinance of 1785 that contained no women. Dyer also found a list of the Ohio Company proprietors, three percent of whom were women. The proprietors owned shares in the company, rather than land on the frontier.
15. Gates, Public Land Law, supra note 5, 87–92.
16. Journals of Continental Congress 34 (June 30, 1788) 247Google Scholar.
17. See, e.g., An Act for Granting Lands to the Inhabitants and Settlers at Vincennes and Illinois Country, in the Territory Northwest of the Ohio, and For Confirming Them in Their Possessions, 1 Stat. 221 (1791).
18. An Act for the Relief of the Refugees From the British Provinces of Canada and Nova Scotia, 1 Stat. 547 (1798). Sec. 2, 1 Stat. 548. Inevitably there were disputes over the disposition of rights in bounty lands and land warrants held by surviving wives. See, e.g., 1 Op. Atty. Gen. 311 (1819); Gales, & Seaton, , General Public Acts of Congress Respecting the Sale and Disposition of the Public Lands, with Instructions Issued, From Time to Time, By the Secretary of the Treasury and Commissioners of the General Land Office and Official Opinions of the Attorney General on Questions Arising Under the Land Laws, 2 vols. [hereafter Gales & Seaton] (1838) i, 418–19Google Scholar; 2 Op. Atty. Gen. 579 (1833). The Attorney General opinions involve application of state law of succession to rights in federal land held by widows.
19. See, e.g., Gales & Seaton, supra note 18, ii, 418. This administrative dispute involved the widow of a man who had an unperfected right to land. His rights were left to his heirs under state law; the widow could not claim his rights unless she was his heir.
20. In addition to debtor protection legislation, states modified probate laws, abolished imprisonment of women for debt, enacted statutes providing somewhat greater protections for widows and deserted spouses and liberalized divorce laws. Chused, ‘Married Women's Property Law,’ supra note 1, 1404–9.
21. See e.g.. An Act Regulating the Grants of Land, and Providing for the Disposal of the Lands of the United States, South of the State of Tennessee, 2 Stat. 229 (1803); An Act Providing for the Final Adjustment of Claims to Lands, and for the Sale of the Public Lands in the Territories of Orleans and Louisiana, 2 Stat. 662 (1811).
22. See, e.g., An Act to Authorize the Sale of Certain Lands Between the Great and Little Miami Rivers in the Territory of the United States Northwest of the Ohio; and for Giving a Preemption of Certain Purchasers and Settlers, 1 Stat. 728 (1799). Language used to designate takers was the gender-neutral ‘persons.’
23. See, e.g., An Act Giving the Right of Preemption in the Purchase of Lands to Certain Settlers in the Illinois Territory, 2 Stat. 797 (1813). This act was later extended to Florida, An Act Giving the Right of Preemption, in the Purchase of Lands, to Certain Settlers in the States of Alabama, Mississippi and Territory of Florida, 4 Stat. 154 (1826), and Missouri, An Act for the Final Adjustment of Land Titles in the State of Louisiana and Territory of Missouri, 3 Stat. 121 (1814).
24. A list may be found as a note to the Preemption Act of 1830, 4 Stat. 420 (1830). For a general review of these statutes see Gates, Public Land Law, supra note 5, 219–47. Statutes permitting settlers to squat as tenants at will, subject to removal on demand, were also adopted as compromise measures. See, e.g., An Act Relating to Settlers on the Lands of the United States, 3 Stat. 260 (1816).
25. An Act to Grant Preemption Rights to Settlers on the Public Land, 4 Stat. 420 (1830). This act permitted settlers to enter and purchase their claims for up to 160 acres if they had possessed and cultivated their land during the year 1829.
26. Reports of administrative actions of the early land bureaucracy are scarce. Some of the materials were compiled from time to time. Gales & Seaton, supra note 18; Lester, W.W., Decisions Of The Interior Department in Public Land Cases, and Land Laws Passed by the Congress of the United States; Together with the Regulations of the General Land Office, 2 vols. (Philadelphia, vol. 1, 1860; vol. 2, 1870)Google Scholar; Copp, Henry N., Public Land Laws From 1869–1875 (Washington, D.C., 1875)Google Scholar; Copp, Henry N., Public Land Laws From 1875–1882 (Washington, D.C., 1883)Google Scholar. A reporting service called Copps's Land Owner was also published from 1874 to 1889. The National Archives also has materials, some of which have been used here. I have not looked at land title records.
27. For general background material see 3 Op. Atty. Gen. 126 (1836); 2 Op. Atty. Gen. 182 (1837); 3 Op. Atty. Gen. 309 (1838).
28. Prior to 1838, the language used by Congress in the various preemption acts varied considerably. Some of the acts spoke only of ‘people’ or ‘persons’ as claimants. An Act to Authorize the Sale of Certain Lands between the Great and Little Miami Rivers in the Territory of the United States Northwest of the Ohio; and for Giving a Preemption to Certain Purchasers and Settlers, 1 Stat. 728 (1799); An Act to Authorize the State of Tennessee to Issue Grants and Perfect Titles to Certain Lands Therein Described, and to Settle Claims to the Vacant and Unappropriated Lands Within the Same, 2 Stat. 381 (1806); An Act Respecting the Claims to Land in the Indiana Territory and State of Ohio, 2 Stat. 395 (1806); An Act Providing for the Final Adjustment of Claims to Lands, and for the Sale of the Public Lands in the Territories of Orleans and Louisiana, 2 Stat. 662 (1811). Others referred to ‘persons or legal representatives’—An Act Giving the Right of Preemption in the Purchase of Lands to Certain Settlers in the Illinois Territory, 2 Stat. 797 (1813); An Act for the Final Adjustment of Land Titles in the State of Louisiana and Territory of Missouri, 3 Stat. 121 (1814); An Act Concerning Preemption Rights in the Territory of Arkansas, 4 Stat. 39 (1824)—or to a ‘person’ or ‘legal representative’ of a person, who was the ‘head of a family’ or ‘twenty one years of age.’ An Act Regulating the Grants of Land, and Providing for the Disposal of the Lands of the United States, South of the State of Tennessee, 2 Stat. 229 (1803); An Act Supplemental to ‘An Act Regulating the Grants of Land in the Territory of Michigan,’ 2 Stat. 502 (1808); An Act Giving the Right of Preemption, in the Purchase of Lands, to Certain Settlers in the States of Alabama, Mississippi, and the Territory of Florida, 4 Stat. 154 (1826).
29. Gales & Seaton, supra note 18, ii, 548–49. The letter was dated February 17, 1831.
30. Ibid. 557–58. The letter was dated September 8, 1831.
31. This is made explicit by 3 Op. Atty. Gen. 182, 184 (1837).
32. Gales & Seaton, supra note 18, ii, 582 (Letter of October 23, 1833, from the Commissioner to a Receiver); Johnson v. Collins, 12 Ala. 322 (1847).
33. During the 1830's, some statutes continued to use the terms ‘settler or occupant.’ See e.g., An Act Supplemental to the Act ‘Granting the Right of Pre-emption to Settlers on the Public Lands,’ 4 Stat. 603 (1832); An Act to Revive the Act Entitled An Act Supplementary to the Several Laws for the Sale of Public Lands, 4 Stat. 663 (1833); An Act to Revive the Act Entitled ‘An Act to Grant Preemption Rights to Settlers on the Public Lands,’ 4 Stat. 678 (1834). Another used the words ‘settlers’ and ‘homemakers.’ An Act Supplementary to the Several Laws for the Sale of Public Lands, 4 Stat. 503 (1832). The potential for women to be claimants under this act was confirmed by the Circulars to Registers and Receivers of the United States Land Offices by the General Land Office of May 8, 1832 and May 17, 1833. Report From the Secretary of Treasury in Compliance With a Resolution of the Senate of the 13th Instant, Transmitting Copies of the Instructions to the Receivers of Land Offices, in Relation to Preemption Rights and Other Unlocated Claims to Public Lands, S. Doc. No. 37, 25th Cong., 2d Sess., 18–21, 24–25 (1837). [Hereafter cited as Treasury Report of 1837].
34. An Act to Grant Preemption Rights to Settlers on the Public Lands, 5 Stat. 251 (1838).
35. The earliest reported case construing this statute is Ely v. Ellington, 7 Mo. 302 (1842). It held that the trial court must require a plaintiff in a trespass case to prove he was a family head in order to prevail by claiming rights under the act. The problem arose because the plaintiff was only eighteen years old but had a slave with him as a cook. The language of this statute also attempted to gain some control over the quality of possession required in order to reduce fraudulent claims. This was the subject of administrative debate just before the act was passed. See 3 Op. Atty. Gen. 309 (1838). The eligibility language was continued in the 1840 extension legislation. An Act Supplemental to the Act Entitled ‘An Act to Grant Pre-emption Rights to Settlers on the Public Lands,’ 5 Stat. 382 (1840).
36. All of the preemption acts adopted before 1841 were retrospective in outlook; they granted rights to persons in possession during a narrowly defined time period. Many of the acts were extended, however, suggesting that permanent legislation was likely to be adopted at some point.
37. An Act to Appropriate the Proceeds of the Sales of the Public Lands and to Grant Preemption Rights, 5 Stat. 453, 455 (1841).
38. An Act to Authorize the Investigation of Alleged Frauds Under the Preemption Laws, and for Other Purposes, 5 Stat. 619 (1843). For administrative circulars on the 1841 and 1843 preemption acts see Lester, Decisions of the Interior Department, supra note 26, i, 360–77.
39. Circular to Register and Receivers of the United States Land Office, September 15, 1841, ibid. i, 365. By 1841, it appears that the preemption acts were being liberally construed. Circulars sent to the land offices often described borderline situations and suggested that the land entries be permitted. See, e.g., a communication entitled ‘Supplemental Instructions Under the Pre-emption Law of 19th June, 1834. By Order of the Secretary of the Treasury,’ Treasury Report of 1837, supra note 33, 39–41.
40. See Grant v. Cromwell, 15 Ind. 315 (1860); Cady v. Eighmey, 54 Iowa 615, 7 N.W. 102 (Sup. Ct. 1880).
41. See Chused, ‘Married Women's Property Law,’ supra note 1, 1404–5.
42. At Act to Graduate and Reduce the Price of the Public Lands to Actual Settlers and Cultivators, 10 Stat. 574 (1854).
43. Circular Instructions Under the Graduation Act of August 4, 1854 (October 30, 1854) in Lester, Decisions of the Interior Department, supra note 26, i, 466.
44. Total exclusion is almost surely the result of the 1854 circular language, since states and territories did not begin to give married women general rights to contract until after 1854. See Chused, ‘Married Women's Property Laws,’ supra note 1, 1409–10, n.263. And certainly before the married women's acts of the 1840s, wives would be excluded under this rule. As a sidelight it is interesting to note that single women eventually won the clear right to claim under the 1841 preemption act as ‘single men.’ The gender language was construed to mean ‘persons.’ 1867 Annual Report of the Commissioner of the General Land Office in Lester, Decisions of the Interior Department, supra note 26, ii, 277. It may well be that this result reflected practice well before 1867.
45. An Act to Grant Preemption Rights to Settlers on the Public Lands 4 Stat. 420, 421 (1830); An Act to Grant Preemption Rights to Settlers on Public Lands, 5 Stat. 251 (1838); An Act to Appropriate the Proceeds of the Sales of the Public Lands, and to Grant Pre-emption Rights, 5 Stat. 453, 456 (1841).
46. See Gates, Public Land Law Development, supra note 5, 235. Despite the provisions, the preemption laws were seriously abused. Ibid. 245–47, 395–96.
47. Petitions began arriving in Washington late in the eighteenth century with a plea from Ohio. Further requests came from Mississippi in 1804 and Indiana in 1806. A fairly concerted drive arose in the western territories between 1812 and 1814. Hibbard, Benjamin, A History of the Public Land Policies (Madison, 1924) 349–350Google Scholar. Senator Thomas Hart Benton's arrival from Missouri led to reintroduction of the matter to Congress in 1825. Various free land proposals were before Congress on numerous occasions after 1825.
48. An Act to Provide for the Armed Occupation and Settlement of the Unsettled Part of the Peninsula of East Florida, 5 Stat. 502 (1842); An Act to Create the Office of Surveyor General of the Public Lands in Oregon and to Provide for the Survey, and to Make Donations to Settlers of Said Public Lands, 9 Stat. 496 (1850); An Act to Establish the Territorial Government of Washington, 10 Stat. 172 (1853); An Act to Establish the Offices of the Surveyor-General of New Mexico, Kansas and Nebraska, to Grant Donations to Actual Settlers Therein, and for Other Purposes, 10 Stat. 308 (1854).
49. This was ameliorated somewhat by the Graduation Act of 1854, 10 Stat. 574. The act reduced the price of land which had been on the market for a long time.
50. Unsurveyed lands in all areas were not preemptible until 1862. An Act to Establish a Land Office in Colorado Territory, and For Other Purposes, 12 Stat. 413 (1862). Earlier acts opened unsurveyed lands in California, Oregon, Washington, Kansas, Nebraska and Minnesota. See Gates, Public Land Law Development, supra note 5, 244.
51. House Bill No. 37 was passed 107–72 by the House of Representatives on March 6, 1854. Congressional Globe, 33d Cong., 1st Sess. (1854) 549. Section 4 of the bill provided:
That all land acquired under the provisions of this act, shall in no event become liable to the satisfaction of any debt or debts contracted prior to the issuing the patent therefor.
Ibid. 547. This provision provoked sharp Senate debate on the extent of Congressional authority to control the disposition of lands after title passed to private parties. Ibid. 540–43, 1705, 1811–13. At the conclusion of the debate, the Senate voted 26–20 to delete the section from the bill. Ibid. 1813. A short time later, the Graduation Act was moved as a substitute, and approved. Ibid. 1832, 1844.
52. Congressional Globe, 37th Cong., 2d Sess. (1862); An Act to Secure Homesteads to Actual Settlers on the Public Domain, 12 Stat. 392 (1862).
53. An Act to Provide for the Armed Occupation and Settlement of the Unsettled Part of the Peninsula of East Florida, 5 Stat. 502, 503 (1842).
54. Both masculine and feminine pronouns were used in the act as substitutes for the term ‘settler.’
55. An Act to Secure Homesteads to Actual Settlers on the Public Domain, 12 Stat. 392, 393 (1862).
56. An Act to Create the Office of Surveyor-General of the Public Lands in Oregon, and to Provide for the Survey, and to Make Donations of the Said Public Lands, 9 Stat. 496, 497 (1850). Section 4 of the act granted to persons settling in Oregon by December 1, 1850 and cultivating their land for four years ‘… the quantity of one half section, or three hundred and twenty acres of land, if a single man, and if a married man, or if he shall become married within one year from the first day of December, eighteen hundred and fifty, the quantity of one section, or six hundred and forty acres, one half to himself and the other half to his wife, to be held by her in her own right….’ Section 5 granted to those settling in Oregon between 1850 and 1853 ‘… the quantity of one quarter section, or one hundred and sixty acres of land, if a single man; or if married, or if he shall become married within one year from the time of arriving in said Territory, or within one year after becoming twenty-one years of age as aforesaid, then the quantity of one half section, or three hundred and twenty acres, one half to the husband and the other half to the wife in her own right….’ When the Oregon Territory was split, the act was extended to the Washington Territory. An Act to Establish the Territorial Government of Washington, 10 Stat. 172 (1853).
57. Congress also adopted one other unusual donation act, An Act to Establish the Offices of Surveyor-General of New Mexico, Kansas, and Nebraska, to Grant Donations to Actual Settlers Therein and for Other Purposes, 10 Stat. 308 (1854). This act limited claimants to male citizens. Information on it is very scarce. The New Mexico act also appears to have been a fairly unimportant land statute. By 1904, less than 5,000 acres had been distributed under the act. Gates, Public Land Law Development, supra note 5, 119. In contrast to the New Mexico legislation, the Oregon Donation Act was used extensively. By 1904, almost 3,000,000 acres had been distributed under the Oregon Donation Act and its continuation version in the Washington Territory. Ibid. 119.
58. For a history of the Oregon Territory see Clark, Malcom, Eden Seekers: The Settlement of Oregon, 1818–1862 (Boston, 1981)Google Scholar.
59. Treaty With Great Britain in Regard to Limits Westward of the Rocky Mountains, 9 Stat. 869 (1846).
60. Holman, Frederick, ‘A Brief History of the Oregon Provisional Government And What Caused Its Formation,’ Oregon Historical Quarterly 13 (1912) 89, 90–117Google Scholar. The men at Champoeg represented over sixty percent of the approximately 160 men then living in the territory. Ibid. 111.
61. Law of Land Claims, July 5, 1843, in Grover, Oregon Archives, Including Journals, Governor's Messages and Public Papers of Oregon From 1841–1849 (1853) 35. See Holman, ‘Brief History of the Oregon Provisional Government,’ supra note 60, 123–24. The claims were possessory because the Provisional Government recognized its inability to dispose of the full title of a sovereign state.
62. An Act in Relation to Land Claims, June 25, 1844, in Laws of a General & Local Nature Passed by the Legislative Committee & Legislative Assembly for Oregon Territory, 1838–1849, 77–78. [hereafter General & Local Laws, 1838–1849].
63. Article III, Organic Laws of Oregon (1845) in Statutes of a General Nature Passed by Legislative Assembly of Territory of Oregon, 2d Sess., Dec. 2, 1850, at Oregon City (1851) 32.
64. An Act to Amend the Organic Law, December 23, 1847 in General & Local Laws, 1838–1849, supra note 62, 45.
65. An Act Adopting the Statutes Laws of the Territory of Iowa and the Common Law, Aug. 12, 1845, in Oregon Acts & Laws Passed by the House of Representatives at Meeting Held in Oregon City, Aug. 1845 (1921) 16.
66. Herriott, F.I., ‘Transplanting Iowa's Laws to Oregon,’ Oregon Historical Quarterly 5 (1904) 139Google Scholar.
67. For a summary of the petitions from Oregon residents see Pike, , ‘Petitions of Oregon Settlers,’ Oregon Historical Quarterly 34 (1938) 216Google Scholar. Congress actively considered Oregon land bills for many years, starting in 1820. See Bancroft, Hubert Howe, The History of Oregon, 2 vols. (San Francisco, 1935) i, 349–90Google Scholar; Carey, Charles H., A General History of Oregon (Portland, 1935) i, 255–59Google Scholar.
68. Bancroft, The History of Oregon, supra note 67, 349–90; Carey, A General History of Oregon supra note 67, 255–59, 447–49.
69. See, e.g., Motion Submitted by Senator Linn in Relation to the Occupation and Settlement of the Oregon Territory, S. Doc. 25, 26th Cong., 1st Sess. (1839). Linn's early bills called for donations of 1,000 acres; later versions reduced this to 640 acres with 160-acre increments if the claimant had a wife or children. See H.R. No. 271, 31st Cong., 1st Sess. 3 (1850).
70. Congressional Globe, 27th Cong., 3d Sess. (1843) 24.
71. See Congressional Globe, 27th Cong., 3d Sess. (1843) 222, App. 80.
72. The bill may have been a precursor to the later Donation Act provisions giving land to married women, but Linn's bill did not clearly provide for separate wifely title. The relevant provisions read as follows:
That provision hereafter shall be made by law to secure and grant six hundred and forty acres, or one section of land, to every white male inhabitant of the Territory of Oregon, of the age of eighteen years and upward, who shall cultivate and use the same for five consecutive years; or to his heir or heirs at law, if such there be, in case of his decease. And to every such inhabitant or cultivator (being a married man) there shall be granted, in addition, one hundred and sixty acres to the wife of said husband, and the like quantity of one hundred and sixty acres to the father for each child under the age of eighteen years he may have, or which may be born within the five years aforesaid.
Congressional Globe, 27th Cong., 3d Sess. (1843) 112. Proposals to donate land to Oregon settlers continued to appear in Congress after 1843, but none reached full floor debate until 1850.
73. Memorial of the Legislative Committee of Oregon for the Establishment of a Territorial Government Under the Protection of the United States, S. Doc. No. 8, 29th Cong.. 1st Sess., 3 (Dec. 8, 1845); Memorial of the Legislative Assembly of Oregon Praying Congress to Establish a District Territorial Government Embracing the Coast of Oregon and to Protect the Citizens in Their New Habitations, Etc., H.R. Doc. No. 42, 29th Cong., 1st Sess., 3 (Dec. 19, 1845); Memorial of the Legislature of the Territory of Oregon Praying the Confirmation of the Land Titles to the Settlers in That Territory, Etc., S. Misc. Doc. No. 3, 30th Cong., 1st Sess., 2 (Dec. 8, 1847); Memorial of the Legislative Assembly of Oregon Territory Relative to Their Present Situation and Wants, H.R. Misc. Doc. No. 98, 30th Cong., 1st Sess., 2–3 (Aug. 10, 1848); Memorial of J. Quinn Thorton Praying the Establishment of a Territorial Government in Oregon, Etc., S. Misc. Doc. No. 143, 30th Cong., 1st Sess. 2, 11 (May 25, 1848).
74. An Act to Establish the Territorial Government of Oregon, 9 Stat. 323, 325, 329 (1848).
75. Oregon Spectator, July 27, 1848. Formed on July 15, 1848, the Association resolved, among other things, to adopt methods to protect claims ‘which shall not only be cheap, but speedy.’ Ibid. A later resolution called for the establishment of arbitration panels and enforcement teams. Oregon Spectator, August 10, 1848. Editorializing against the potentially lawless association also appeared. Oregon Spectator, August 24, 1848.
76. The language in the text was in the preamble to An Act to Prevent Injuries to the Possession of Settlers of Public Lands (Sept. 12, 1849) in Statutes of a General Nature Passed by Legislative Assembly of Territory of Oregon, 2d Sess., Dec. 2, 1850, at Oregon City (1851). The 1843 Code of Iowa was also adopted in large part at this session of the legislature. An Act to Enact and Cause to be Published a Code of Laws (Sept. 29, 1849) in General & Local Laws, 1838–1849, supra note 62, 103.
77. An Act to Secure to the Heirs of Deceased Persons the Value of Their Land Claims (Feb. 15, 1849) in General & Local Laws, 1838–1849, supra note 62, 61.
78. Thurston spent a significant amount of time on the question. See Diary of Samuel Royal Thurston, Oregon Historical Quarterly 15 [hereafter Thurston Diary] (1914) 153, 181, 186, 191–204Google Scholar; White, , ‘The Career of Samuel R. Thurston in Iowa and Oregon,’ Iowa Journal of History and Politics 14 (1916) 239, 260–61Google Scholar; Clark, Eden Seekers, supra note 58, 236–39. In his later reelection letter to his constituents, Thurston wrote that the land issue was his top priority. Letter to the Electors and People of the Territory or Oregon 3: Thurston Papers, MSS 379, Oregon Historical Society (Nov. 15, 1850). Letters to Thurston's wife, Elizabeth, discussing the bill, were written on Jan. 2, 1850 (tells of bill he submitted extinguishing Indian title as a first step towards the land law); June 9, 1850; August 11, 1850 (‘got my land bill through the House’); Sept, 16, 1850 (delays of ‘my land bill’ in Senate); Sept. 22, 1850 (passed Senate); Sept. 29, 1850 (passed). All of Thurston's letters to his wife are in the Thurston Papers at the Oregon Historical Society. Thurston also discussed the bill with Governor Fitch of the Committee on Territories and with Land Office personnel. Thurston Diary, 191–95.
79. This was recognized by the Land Office. In the Annual Report of the Commissioner of the General Land Office, House Ex. Doc. 5, 31st Cong., 1st Sess., 17 (1849) a call was made for ‘further legislation … to recognize all old bona fide settlement claims, to secure the owners in their improvements, to give them a fee title in their lands, and to invite emigration by liberal donations to those who will make that country their home.’
80. He got the House journals from 1837 on and extracted relevant material. Thurston Diary, supra note 78, 162, 166–68. He noted his intention to do the same for the Senate. Ibid. 166. He also hunted up old House bills and Senate documents on Oregon; ibid. 167, 168, 169, and reviewed old laws on Oregon; ibid. 161, 165, 166.
82. An Act of March 22, 1844, to Secure to Married Women their Rights in Property, ch. 117, 1844 Me. Acts 104. Section 1 of the act provided that married women ‘may become seized or possessed of any property … in her own name, and as of her own property.’
83. An Act Concerning the Rights of Married Women, Jan. 2, 1846, ch. 5, 1845 Iowa Terr. Acts 4 (1846). Section 2 of the act provided that married women ‘shall possess… [property] in her own right, and the same shall in no case be liable to the debts of her husband.’ Like the Maine act, this language tracks that of the Oregon Donation Act very closely. Thurston edited the Burlington Gazette from 1845 to 1847 before he went to Oregon. Scott, Harvey W., History of the Oregon Country, 2 vols. (Cambridge, Mass., 1924) ii, 242Google Scholar. This was confirmed by my perusal of newspapers at the Library of Congress.
84. Odell, Elizabeth, Biography of Samuel R. Thurston, 1–2 (Unpublished paper, MSS 379, Oregon Historical Society, 1879) 3Google Scholar.
85. Congressional Globe, 31st Cong., 1st Sess. (1850) 413.
86. Congressioal Globe, 31st Cong., 1st Sess. (April 22 and 24, 1850) 791, 814.
87. In a letter to Thurston on the section of the Donation Act denying Dr. McLoughlin his land claim, a matter of great controversy in Oregon, Fitch acknowledges that ‘the Committee on Territories… instructed me to draft it [the Donation Act].’ Letter from Graham N. Fitch to Samuel R. Thurston, dated December 9, 1850, as published in the Oregon Spectator, February 6, 1851.
88. Just before the House Public Lands Committee reported out its bill, the Senate was also visited with a donation bill, S. 202, which was referred to the Senate Committee on Public Lands. Congressional Globe, 31st Cong., 1st Sess. (April 16, 1850) 743. S. 202 was identical with H.R. 250.
89. On March 16 Thurston visited with Fitch to urge a favorable report on the land bill. Thurston Diary, supra note 78, 191. Two days later, Thurston wrote that he planned to meet Fitch ‘to draw up the land bill for Oregon.’ Ibid. 192. He then reported on an evening visit to Representative Fitch on Sunday, March 17, 1850. ‘Not very right I admit,’ wrote Thurston, referring to the time and day of the business call. Thurston also visited with Fitch on the land bill on March 19. Ibid. 192. The Land Commissioner visit was on March 18. Ibid.
90. Thurston called on the Chief Clerk on April 9, 1850 and returned on April 13 ‘to see that our land bill was ready by Monday.’ Ibid. 194–95. Clearly the bill was handled by a number of people, including Fitch, see supra note 88, Land Office personnel, and Thurston. Pinpointing the principal draftsman is impossible.
91. Thurston Diary, supra note 78, 195. This diary entry was on April 18, 1850, the same day the bill was introduced in the Senate and four days before the Territories Committee reported the bill to the floor. See ibid. 196, for the April 22 entry on the bill's reporting and referral to Public Lands. National Archives material confirms Thurston's diary entry. While the Archives cupboard was bare on Thurston's dealings with the Chief Clerk at the Survey Division of the Land Office, luck was better with legislative records. I looked through items from Record Group 233 at the Archives, including the files of the U.S. House of Representatives, 31st Cong., on H.R. 250, the Territorial Committee Docket books and the volume of engrossed bills containing the Donation Act. An entry for February 25, 1850, in the Docket Book, Committee on Territories, 31st Cong., 1st & 2d Sess., confirms that Thurston presented a resolution which was referred to the committee, where it was laid on the table. This entry is followed by a note which reads as follows:
Having been referred to Mr. Fitch, he now, April 17th, 1850, reports Bill accompanied with Report—adopted by Committee and Mr. Fitch instructed to Report the same to the House, to be referred to Committee on Public Lands—Bill & Report to be printed.
The jacket of the original bill on file in the National Archives also contains notations reflecting the bill's movement from the Committee on Territories to the Committee on Public Lands.
92. The National Archives file on H.R. 250 contains a document entitled ‘Amendments to House Bill 250 Made by the Committee on Public Lands.’ It is this document which lacked any references to the married women's provisions of sections 4 and 5.
93. The basic text of the handwritten versions of H.R. 250 was not in Thurston's writing. After the language in the adopted version of section 5 reading ‘…in her own right to be designated by the Surveyor General as aforesaid,’ the version deliberated upon by the Committee on Territories had this crossed-out language:
and all lands herein provided for to be donated to females shall forever be the property of such females in their own right; to be by them held, used, aliened, and devised at their own will and pleasure, and not subject to the control of their husbands or be liable for their debts without the consent of such females first had in writing in such manner as may be provided for hereafter by the Legislative Assembly of Oregon Territory.
This language was never discussed on the floor of the House.
94. See Chused, ‘Married Women's Property Law,’ supra note 1, 1410–11.
95. Ibid. 1400.
96. H.R. No. 271, 31st Cong., 1st Sess. (1850). In 1847, the report suggested, when ‘people were expecting a liberal [land] policy to be adopted,’ 1,000 wagons made the trip west. By 1849, the number was down to fifty. H.Rep. No. 271, 31st Cong., 1st Sess. 4 (1850).
97. Congressional Globe, 31st Cong., 1st Sess. (1850) 1034. The bill emerged with a few amendments not relevant to this study.
98. This undated document is in the Thurston Papers, MSS 379, Oregon Historical Society. Oregonians were apparently unaware of the letter's content until after House debates were concluded. White, ‘The Career of Samuel R. Thurston,’ supra note 78, 239, 262–63 notes that the letter first appeared in the Oregon Spectator on September 12,1850. My own review of the Spectator confirms this. From comments in the Spectator, it appears that the letter was in circulation in Oregon sometime in August after being privately printed on Thurston's order. Oregon Spectator, August 29, 1850. The Oregon Donation Act, as it emerged from the House Public Lands Committee was published in the Spectator on September 5, 1850.
99. Thurston noted in his diary that he worked on an address to his constituents on April 19 to 23, the days surrounding the introduction of the Donation Bill. Thurston Diary, supra note 78, 196. This may refer to either the letter or a long address on general subjects printed serially in the Oregon Spectator on September 26, October 3, October 10 and October 17, 1850. The most logical conclusion is that it refers to the address, since the word ‘address’ is used in the diary. In any case, for reasons suggested in the text, the letter was probably not distributed immediately after the diary entries were written.
100. The pamphlet version of the letter is eight pages long in very small type. The newspaper version covers much of the first and second pages of the Spectator, September 12, 1850.
101. Congressional Globe, 31st Cong., 1st Sess. (1850) 1075, 1548.
102. See Berquist, James M., ‘The Oregon Donation Act and the National Land Policy,’ Oregon Historical Quarterly 58 (1957) 17Google Scholar.
103. Chused, ‘Married Women's Property Law,’ supra note 1, 1402.
104. Congressional Globe, 31st Cong., 1st Sess. (1850) 1094. Sackett also strongly opposed Thurston-backed amendments to prevent Blacks and aliens from taking donation claims. Ibid. 1095–96.
105. Data from the Census of 1850, Table LIX—Proportion of White Males to Females, H. Misc. Doc. No. 686, 32d Cong., 2d Sess. 2 (1850), produce this table:
106. See Douglas, , ‘Origins of the Population of Oregon in 1850,’ Pacific Northwest Quarterly 41 (1950) 95Google Scholar.
107. See William Bowen, ‘The Oregon Frontiersman: A Demographic View,’ in Thomas Vaughan, ed., The Western Shore (1975) 181, 185–92. A much more complete conclusions in this article may be found in William Bowen's thesis, ‘Migration and Settlement on a Far Western Frontier: Oregon to 1850’ (Unpublished thesis, 1972). Some areas, such as California, had enormous gender population disparities during mineral ‘rush’ eras. Ibid. 189.
108. Thurston certainly believed it. He wrote to Mr. Philip Foster in Oregon on June 30, 1850, about the pending land bill, saying: ‘I shall get the land bill passed, and if so, you may recon, that fifty thousand persons will emigrate to Oregon from the states in the next three years. I know there are extensive preparations for this purpose now being made, and I can say to you with all confidence that you may rely on a prompt market at home for all the people in Oregon can produce hereafter.’ Philip Foster Papers, MSS 996, Oregon Historical Society.
109. Congressional Globe, 31st Cong., 1st Sess., (1850) 1080. He was trying to amend the bill when another amendment was pending before the House. He later tried and failed to delete the entire donation section. Ibid. 1095, 1547. Neither Thurston's diary nor his letters to his wife refer to Potter. I don't know if Thurston talked to him about his amendments. Mr. Potter was reasonably accurate in his portrayal of reality, at least as to agricultural lands. See supra notes 105–7 and accompanying text. An attempt to reduce the size of the donation grants also failed. Ibid. 1094.
110. Congressional Globe, 31st Cong., 1st Sess., (1850) 1075–80, 1090–93.
111. Ibid. 1554, 1588.
112. During this period, Thurston despaired of gaining passage of the Donation Act. On September 3, 1850, after the Senate declined to move forward on the bill, Thurston wrote to William Meek complaining in somewhat irrational fashion of interference from the War Department. The letter was printed in the Oregon Spectator of October 31, 1850, followed by an editorial note:
The above was handed to us by Mr. Wm. Meek, with a request that we publish it in our first issue. We do not wish to create any unnecessary alarm by so doing. The gentleman himself is undoubtedly excited.
There is much secondary commentary suggesting that Thurston was suspicious and duplicitous. See e.g., Clark, Eden Seekers, supra note 58, 237–38; White, ‘The Career of Samuel R. Thurston,’ supra note 78, 239, 261–64; Bancroft, History of Oregon, supra note 68, ii, 114–38. While some of the more unrestrained criticism may be overdone, there is little doubt that Thurston was very controversial by 1851 and that he would have had opposition during his reelection campaign had he survived.
113. Congressional Globe, 31st Cong., 1st Sess. (1850) 1739.
114. This was erroneous. Oregon did not adopt such a provision until 1852. See infra, note 150–57 and accompanying text.
115. The Congressional Globe reported that the amendment to delete the provision failed by 17–24 vote. Congressional Globe, 31st Cong., 1st Sess. (1850) 1739. For reasons which are completely unexplained in the Globe, the amendment proposed and supposedly defeated in the Senate was reported as having been adopted by the Senate when the bill was sent back to the House for its concurrence with the Senate amendments. Since the engrossed version of the bill in the National Archives shows that the amendment was adopted by the Senate it is likely that the Congressional Globe was in error when it reported the failure of the Senate amendment to delete the husbandly debt provision.
116. Ibid. 1843–44. The vote was 44–3. The dismal fate of the proposal must have been due in part to a desire by many not to clutter the bill with so many amendments that the House would lack time to pass the bill before the session ended. Sentiments against the amendment on its merits, of course, also played a role.
117. Section 5 of the bill, which donated lands to future settlers, created much more controversy in the Senate than Section 4. Section 5 was seen by some as a giveaway, a homestead. Florida Senator Yulee's motion to delete Section 5 was withdrawn, but only after the time for making a future claim was reduced from five to three years. Ibid. 1841–1845. Other than the debt provision, the debates did not focus specifically on the married women's issue, though family migration was much discussed. A variety of other amendments were debated, ibid. 1840–1848, 1869, before the bill was passed by the Senate. Among them was a proposal to attach a homestead act applicable to all territories. It got only three votes, though sentiment for a homestead act unattached to other legislation probably ran significantly higher.
118. Ibid. 1953.
119. Clark, Eden Seekers, supra note 58, 237; White, ‘The Career of Samuel R. Thurston,’ supra note 78, 239, 257–61.
120. The major provision dealt with the land claims of William McLoughlin, the head of the Hudson's Bay Company. Thurston saw to it that Section 11 of the bill contained language depriving McLoughlin of his land in Oregon City. This episode created a great deal of controversy. McLoughlin, though head of the Hudson Bay Company, was highly respected by many in Oregon. See, e.g., Bancroft, The History of Oregon, supra note 67, ii, 117–28; Clark, Eden Seekers supra note 58, 237–39.
121. Scott, History of the Oregon Country, supra note 83, 242. Odell, ‘Biography of Thurston,’ supra note 84, 1–2. Thurston was born in 1816 and died at age thirty five in 1851. Odell was Thurston's wife. She remarried many years after Thurston died at sea in 1851 on his return voyage from the 31st Congress. The essay on virtue, found in the Thurston Papers, MSS 379, Oregon Historical Society, is signed, but untitled and undated. The essay's first line reads: ‘Seminary. Classical Department. No. 5.’ The presence of the ‘semimary’ language suggests it was written at Readfield.
122. See Chused, ‘Married Women's Property Law’ supra note 1, 1416, 1421.
123. There is also evidence that Thurston's wife took her husband's ideas seriously. She participated in a number of public charitable activities outside the home. During Indian conflicts in 1848, Mrs. Thurston was appointed secretary at a meeting called ‘to consult upon the best means to aid in relieving the necessities of the soldiers.’ The women gathered clothes for the soldiers and sent them off accompanied by a note of thanks. Gray, W.H., A History of Oregon, 1792–1849 (Portland, 1870) 570–72Google Scholar. During the Civil War years, Mrs. Thurston was active in the Oregon Sanitary Aid Society. Jeffery, Julie Roy, Frontier Women: The Trans-Mississippi West, 1840–1880 (New York, 1979) 181–82Google Scholar. In 1863, speaking before a gender-mixed audience at an evening ‘entertainment,’ she urged her colleagues to participate in aiding the Union case without fear of overstepping ‘the bounds of propriety.’ Speech of Elizabeth Thurston, Thurston Papers, MSS 379, Oregon Historical Society.
124. A large number of letters talk about financial matters. Sept. 30, 1849; Jan. 7, 1850; Apr. 15, 1850; Aug. 4, 1850; Sept. 22, 1850; Dec. 15, 1850; Feb. 9, 1851; Feb. 28, 1851; Mar. 8, 1851; Mar. 11, 1851. The last spate of money letters were laced with talk of death, as if Thurston were getting his affairs in final order.
125. Jan. 2, 1850.
126. Jan. 2, 1850; June 9, 1850.
127. Aug. 11, 1850; Sept. 16, 1850; Sept. 22, 1850; Sept. 29, 1850.
128. Sept. 16, 1850. Thurston was strongly anti-slavery, though opposed to allowing freed Blacks to move to Oregon. On September 16, 1850, Thurston wrote to his wife:
By the way, Wesley Shannon writes me that amids the utmost universal approbation of my speech [on California], old Col. Ford is opposed to it, because it does not favor slavery. Poor old sot! I am ashamed that there is one man in Oregon who would if he could curse Oregon by the introduction of a servile race whose presence would at once black the very heart of our prosperity—free white labor. But, dear wife, I have no compromises to make, for dearly as I love Oregon, should she ever so far forget herself as to allow slavery to exist in her midst, which may God avert, we will quit her borders and flee to a free state.
Such attitudes were hardly unusual for Thurston's time. They emphasize the ease with which gender and racial issues were separable in the minds of most mid-nineteenth-century politicians.
129. Sept. 22, 1850; Sept. 29, 1850; Nov. 30, 1850; Jan. 5, 1851; Jan. 19, 1851.
130. Jan. 2, 1850 (the mails).
131. Sept. 30, 1849, Nov. 26, 1849; Jan. 2, 1850; Apr. 15, 1850; May 26, 1850; Jun. 9, 1850; Aug. 4, 1850; Sept, 22, 1850.
132. Thurston often wrote informally of his son George Henry and daughter Elizabeth.
133. Aug. 17, 1850; Jul. 14. 1850.
134. Jan. 7, 1850. Moral obligation or natural law was discussed in other letters too. E.g., Jul. 14, 1850.
135. Jul. 14, 1850.
136. Jul. 14, 1850; Aug. 17, 1850.
137. Jan. 7, 1850; Feb. 3, 1850; Jul. 7, 1850. Mr. Hill was a family friend with whom Elizabeth Thurston and her two children lived for a time after Samuel went to Congress.
138. Jul. 7, 1850.
139. Jul. 14, 1850.
140. Aug. 17, 1850.
141. Aug. 11, 1850.
142. Dec. 29, 1850.
143. Jan. 1, 1851.
144. Aug. 17, 1850.
145. Dec. 29, 1850.
146. The letters simply never talk of Elizabeth Thurston having only specific duties to her husband. There are adoring comments by Samuel, statements of horror should Elizabeth be unfaithful, and instructions on finances, but no servile commands.
147. Letter on June 15, 1850. This letter, one of the longest Thurston wrote to his wife, was a lovely reminisce about Thurston's younger years in Maine. Perhaps he was trying to cushion the blow of the letter's last line, ‘(confidential),’ Thurston wrote. ‘I shall be candidate for reelection, Yours truly &c. Saml R. Thurston.’ His wife could hardly have been overjoyed at the news.
148. Nov. 30, 1850. The address was reprinted in four successive issues of the Oregon Spectator, September 26, October 3, October 10 and October 17, 1850.
149. Ibid. Emphasis is in the original. Similar views were expressed by Thurston in his Address to His Constituents in Oregon Territory. The segment of the address in the October 3, 1850 issue of the Oregon Spectator, contains much talk of manual labor as an honorable endeavor, and of homesteads as insurers of men's freedom from the ‘clamers of capitalists.’ Thurston wrote:
And it has now become to be generally believed, that the safety of the liberties of the people demand that every man, shall, if he will, be put in possession of the means of self-defense. Hence, the doctrine of exemption of estate property from attachment, has become to be the doctrine of the day. The law contemplates leaving sufficiency of means in the hands of every man to enable him, combined with his personal industry, to procure all the necessities of life.
Such attitudes towards homesteads were perfectly compatible with a favorable view of the early married women's property acts.
150. If Thurston had tried to alter the bill approved by the Senate, he would certainly have run out of time to get the bill adopted. He therefore took what he could get. See his Letter to the Electors and People of the Territory of Oregon, Thurston Papers, MSS 379, Oregon Historical Society (Nov. 15, 1850) 7.
151. Ibid. 7.
152. Some of the legislative turnabouts are discussed in the text that follows. To contrast the attitudes of some of Oregon's Supreme Court judges with that of federal Judge Matthew P. Deady, compare Brummet v. Weaver, 2. Or. 168 (1866); Rugh v. Ottenheimer, 6 Or. 231 (1877), with Fields v. Squires, 9 F. Cas. 29 (C.C.D. Or. 1868)(No. 4,776); Wythe v. Smith, 30 F. Cas. 771 (C.C.D. Or. 1876)(No. 18, 122).
153. An Act to Exempt the Wife's Portion of Lands Donated in Oregon Territory by Act of Congress, Approved September 27, 1850, From the Debts and Liabilities of her Husband (Jan. 20, 1852); General Laws Passed by the Legislative Assembly of Territory of Oregon, at 3d Sess., at Salem Beginning Dec. 1, 1851 (1852) 64.
154. An Act Defining the Rights and Fixing the Liabilities of Married Women, and the Relation Between Husband and Wife (Oct. 21, 1878) in Oregon Session Laws, 10th Sess., (1878) 92; An Act to Establish and Protect the Rights of Married Women (Oct. 21, 1880) in Oregon Session Laws, 11th Sess., (1880) 6.
155. Section 3, An Act Respecting Wills (Sept. 26, 1849) in Statutes of a General Nature Passed by Legislative Assembly of Territory of Oregon, 2d Sess., Dec. 2, 1850, at Oregon City (1851) 274–75.
156. Section 3, An Act Relating to Wills (Dec. 15, 1853) in Statutes of Oregon, at Session Beginning Dec. 5, 1853 (1854) 354–55.
157. Section 30, An Act Relating to Estates in Dower, by Curtesy and General Provisions, Concerning Real Estates (Jan. 16, 1854) in Statutes of Oregon, at Session Beginning Dec. 5, 1853 (1854) 373.
158. An Act to Repeal All Acts Heretofore Passed, With Certain Exceptions (Jan. 30, 1854) in Statutes of Oregon, at Session Beginning Dec. 5, 1853 (1854) 505.
159. See Kelley, James K., ‘History of the Preparation of the First Code of Oregon,’ Oregon Historical Quarterly 4 (1903) 185Google Scholar.
160. Article XV, Section V, of the Oregon Constitution of 1859, provided:
The property and pecuniary rights of every married woman, at the time of marriage, or afterwards, acquired by gift, devise, or inheritance, shall not be subject to the debts or contracts of the husband; and laws shall be passed providing for the registration of the wife's separate property.
161. At the urging of the territorial legislature and the Surveyor General, Congress amended the Donation Act three times to insure that widows of male claimants and males dying en route to Oregon could make donation claims, to permit donation claimants to pay for their land and short circuit the four-year occupancy requirements and to extend the time period in which persons could file claims. The history of the widow's provisions is much like that of earlier federal land bills which had to be amended to benefit the spouse of the deceased claimants. One other interesting problem surfaced involving widows. After some controversy between the lower courts and the land bureaucracy, the Supreme Court eventually held that married women's claims were derivative of their husbands. Thus, the spouses of men dying before completing the four years of occupancy risked losing their claims. Vance v. Burbank, 101 U.S. 514 (1879).
162. It is not clear if the Oregon Donation Act had an impact on the relative wealth of men and women in the state. What happened to all the land owned by women in Oregon as the nineteenth century progressed is not known. Until land title chains are studied in some detail, we are left with a hypothesis that some lasting cultural impact may have occurred as a result of the Donation Act. There is some indication that even this hypothesis may be false. Davenport, , ‘An Object Lesson in Paternalism,’ Oregon Historical Quarterly 4 (1903) 33Google Scholar. Davenport surveyed 100 square miles on the east side of the Willamette Valley in Marion County and found that:
[S]ixty-six per cent of donation claims have passed out of the possession of the donees and their descendants, another fifteen per cent are mortgaged for all they are worth, and for practical purposes may be considered as lost to them. Not more than fifteen per cent of the whole have been ordinarily successful in holding and improving a part of their possessions and are now free from debt. Only five of all of them have increased their holdings and are thrifty.
Ibid. 50–51. Davenport appears not to have studied how persons selling their land used the money received; nor did he focus on women's holdings. His study also reflects the late nineteenth-century biases against debt and fails to analyze the impact of the one-third of the claims still held by the original donee families. But it is certainly possible that many of the claims obtained by women were transferred to men over the years.
163. See An Act to Regulate Proceedings in Suits in Equity, Ore. Terr. Stat., 5th Sess. (Jan. 23, 1854). See also Pittman v. Pittman, 4 Ore. 298 (1872), where Emily Pittman was denied relief in a court of law for the use by her husband of a $1,000 separate estate trust fund. She was told to seek a remedy in an equity court.
164. See An Act to Authorize Campbell E. Cristman and Lucinda Cristman to Make a Marriage Settlment of Their Property, Ore. Terr. Stat., 8th Sess. (Jan. 12, 1857) (permitted a postnuptial marriage settlement). Divorces were also granted, some of which reinstated property rights, permitted resumed use of maiden names, granted child custody to women and confirmed divorce settlement agreements. See Act to Divorce Dillard Martin and Miriam Martin (Jan. 17, 1859); An Act to Divorce Nancy Judson and Lewis H. Judson (Jan. 19, 1859); An Act to Divorce Susan Tary and William Tary (Jan. 22, 1859); An Act to Divorce Hessey Williams (Jan. 19, 1859); An Act to Divorce Mary Culbertson From Her Husband, Wm. A. Culbertson (Jan. 20, 1859); An Act to Divorce Sarah Torrence (Jan. 22, 1859).
165. Newspaper reports of the proceedings of the Constitutional Convention of 1857 have been pulled together in C.H. Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 (1926). Some discussion of debtor protection issues and the Oregon Donation Act occurred. Ibid. 367–69.
166. There are many examples of ineptly drafted or ambiguously worded land grant statutes. One series of statutes which contained inexplicable differences over time was of those dealing with preemption. Some of the multitude of variations in these statutes is reported supra note 28.
167. See Chused, ‘Married Women's Property Law,’ supra note 1, 1409–12.