REPRESENTATIVE AND LEADING
MEN OF THE PACIFIC
MATTHEW P. DEADY.
By HARVEY W. SCOTT.
EDITOR of “THE OREGONIAN.”
The rise of American communities and their formation into States have given opportunity for the growth and development of many of our most noted and useful public men.
The man who has borne a prominent part in establishing one of the States of our American Union, who has been instrumental in giving direction to its growth and distinctiveness to its character, and who has largely assisted in infusing a spirit of independence and self-reliance, as well as a moral and practical progressive energy into its development— such a man is sure of an honorable and permanent place in our history. All our States have those who are thus held in remembrance, and their history forms a large part of the general history of the country. To illustrate this, particular names need not be recounted. Every one who studies the history of the origin of the several States, readily selects the individuals whose influence has given them the distinguishing characteristics which they as communities posses.
The person who acquaints himself with the history of Oregon will assign to JUDGE DEADY a leading place among those who are entitled to be regarded as the representative men of the Pacific Coast. A residence of twenty years’ duration, the greater part of which has been spent in active participation in the affairs of the Territory and State, has enabled him to exert a remarkable influence upon the thought, the habits, the jurisprudence, and the general interests of this rising commonwealth. Few men have ever more thoroughly impressed their ideas upon a large community that he has done. He came to Oregon at a time when the various elements of society, which had been drawn together from localities separated widely from each other by customs as well as by distance, had met and begun to coalesce; and taking them in this transition state, he has been largely instrumental in moulding them into their present form. Possessing many, though not all, of the qualities necessary for a leading public character, he has often been able to guide and direct where he has not had power to absolutely control. His extensive learning, his ready judgment, his clear perception of the whole relations of a subject, with the ability to state his opinions in a consistent and convincing manner, have always given him influence and power; and while he is lacking in certain elements of character which enable some men to achieve a very high popularity, he possesses those solid qualities which always command respect, and which, in general, enable their possessor to make a more enduring impression upon the public thought than is made by many whose praises are continually on the popular tongue.
MATTHEW P. DEADY was born May 12, 1824, in Talbot county, Maryland, nine miles from Easton. He is of Irish and English extraction. His father was a man of education, and a schoolmaster by profession. His parents were married in Baltimore, his mother’s native place, where they mainly resided until the year 1828, when they removed to Wheeling, Virginia. Here his father had charge of the Lancasterian Academy, a public school conducted upon the monitorial system of the celebrated English Quaker, Joseph Lancaster, and in this school Matthew took his first lessons in the “hornbook and ferule.”
In 1833, the family returned to Baltimore on a visit. On the return to Wheeling, Matthew’s mother died and was buried in May, 1834, near Burkettsville, in western Maryland. Thenceforward, Matthew was thrown for the most part upon his own resources and impulses for his progress through the world and the direction of it. During the summer of 1834, he attended school at Fredricktown, Maryland. In the autumn of the same year, he returned to Baltimore and entered his grandfather’s store, where he remained until the spring of 1836, when he returned to his father in Wheeling. Here he went to school, and was employed in a music store until 1838, when he removed with his father to Belmont county, Ohio. There he lived and labored upon his father’s farm for about three years, when he voluntarily left home and went to Barnesville, Ohio, to learn the trade of blacksmithing. With the exception of six months, during which he attended the Barnesville Academy, he wrought at the anvil for the next four years, when his engagement with his employer closed. During this period, he became a skillful mechanic. Besides the physical development and hardiness which these years of wholesome labor gave him, he obtained at the same time a knowledge of men and things in the practical affairs of life which no amount of mere school culture could have bestowed.
In this country, where every man must make his own way to fortune, and where “self-made men,” to adopt a trite phrase, are the only ones who win position and hold it, the man whose early life is one of severe struggles, has, in general, a great advantage over those who might seem to be more favored by fortune. He who has accustomed himself in early life to meet difficulties and surmount them, acquires a courage and a steadfastness which will serve him better than any patrimonial estate; for no man, in a country like ours, where competition is so great, and where continued success depends on absolute merit, can sustain himself for a day after he relaxes his effort and loses faith in himself. In Troilus and Cressida, Ulysses, remonstrating with Achilles for his inactivity, says:
Perseverance, dear my lord,
Keeps honor bright; To have done, is to hang
Quite out of fashion, like a rusty nail
In monumental mockery. Take the instant way;
For honor travels in a strait, so narrow,
That one by one pursue. If you give way,
Or hedge aside from the direct forthright,
Like to an eternal tide they all rush by,
And leave you hindmost.
Grit and pluck are good words to describe the qualities which are indispensable to every American. And there is nothing which gives these qualities a better development than the necessity which compels a man to obtain a practical knowledge of what labor is, and causes him to commence to build upon this solid foundation of all human improvement. Most of our public men have had preparatory discipline in the school of labor, and this had generally been not the least valuable part of their education and training for public duty. Such a beginning is almost necessary to Americanize our public men. But none except low minds attempt to make particular merit of it. There has been as much mean demagogism on this point as on almost any other. A great writer says: “There is no qualification for public place but virtue and wisdom, actual or presumptive. Wherever they are found, they have in whatever state, condition, profession or trade, the passport of Heaven to human place and honor. Woe to the country that would madly and impiously reject the service of the talents and virtues, civil, military or religious, that are given to grace and serve it; woe to that country, too, that passing into the opposite extreme, considers a low education, a mean, contracted view of things, a sordid, mercenary occupation, as a preferable title to lead and command.”
After his apprenticeship closed, Matthew pursued his studies in an academy six month longer. This was the end of his school days. He thereafter never had the advantages which a collegiate education would have given him; but the person who obtains any idea of the extent of his learning, the accuracy of his information, his taste and discrimination in literature, and his knowledge of matters which suppose that he had prepared the way for this culture by a thorough course of college study.
But though he had labored patiently and with a steady purpose for several years in making himself master of a trade, he did not pursue it further; and after leaving school, in obedience to that principle which attracts so many of our young men towards literary instead of mechanical pursuits and leads them to commence with the study of the law, he began to apply himself with a view of acquiring a knowledge of that profession. This was in the winter of 1845-6, and he was now twenty-one years old. While thus engaged, he had recourse to that common expedient of our young men who are making their way in the world-he taught school. He continued the study of law with William Kennon, Sr., of St. Clairsville, Ohio, since on the Supreme Bench of that State. In October, 1847, he was admitted to the bar of the Supreme Court of Ohio, and practiced law in St. Clairsville until the beginning of the year 1849, when he took the idea of removing to Oregon. His old friend, Judge Kennon, had long entertained the project of coming to the Valley of Wallamet. In his dreams, here was a spot “like those Hesperian gardens famed of old;” and he inspired those about him with his own enthusiasm in regard to a place so fair and so romantic. About this time, the discovery of gold in California set all the adventurous spirits of the country agog for the shores of the Pacific. Several young men of St. Clairsville made preparations for the western march, and Mr. Deady, sharing the general love for adventure, resolved to join them. They set out about the beginning of the year 1849, but proceeded no further in company than Leavenworth. At that place Mr. Deady joined a Government train and continued with it as far as Fort Kearney, where he fell in with Paymaster of the United States Army, who was coming over the plains with an escort to Oregon. He joined this party and reached the Dalles, then the farthest outpost of Oregon civilization, on the 7th of November, 1849. His friend, Judge Kennon, who had first directed his mind hither, never visited Oregon. Mr. Deady had set out for “The West” with twenty dollars in his pocket; and various small debts which he was unable to pay when he started, he discharged with money which he earned in teaching school during the winter after his arrival.
In those days, the man who came to Oregon, never considered his journey ended until he had reached Oregon city. Following the general fashion, Mr. Deady went to that place, and after a few day’s sojourn there, departed for Yamhill county.
On the plains near Fort Hall, his party had fallen in with some Yamhill people, and traveled in company with them for the remainder of the journey. The acquaintance thus formed was the means of leading him to Oregon’s historic county, Yamhill. He reached Lafayette, the capital of that county, and then one of the principal towns in Oregon, on the 13th of December. During the winter, he had recourse to the old employment of school teaching.
In 1850, he commenced practicing law, and almost immediately became well and favorably known. At that time, and for several years thereafter, Layafette was an important business point; and Mr. Deady was not a man to go into such a community and remain unknown and unnoticed. In the general election in June of that year, though he had been only six months in the Territory, he was chosen a member of the Lower House of the Oregon Legislature. He distinguished himself as a member of the House Judiciary Committee, and the next year (1851) was elected a member of the Territorial Council. Here the position of Chairman of the Judiciary Committee was assigned him. A special session of the Legislature was held in July, 1852, and the abilities he had already displayed in that body caused him to be elected President of the council. Thus he became a “growing man” from his first appearance in public life; and from that time his reputation and influence have been increasing steadily, as he has had opportunities to make himself known.
Until 1853, he continued to practice law in Yamhill county.
He married, in June, 1852, Lucy, eldest daughter of Robert Henderson, Esq., of Yamhill. Four children have been born to them, two of whom are now living.
In the spring of 1853, he received his first appointment to a judicial position, being made as Associate Justice of the Supreme Court of the Territory of Oregon. His colleagues on the bench were Hon. Geo. H. Williams, Chief Justice, now a United States senator from Oregon, and Hon. Cyrus Olney, now a resident of Astoria, and still one of the most active and influential citizens of the State.
Judge Deady held his first term of Court at Hillsboro, Washington county, in July, 1853. That county then included the city of Portland and the present county of Multnomah. But as he had chosen the Southern Judicial District of the Territory, comprising the counties south of Wallamet Valley, he soon removed to that section. He took a land claim in Douglas county, ten miles from Roseburg, and established his residence thereon. For the next five years, his life was an active and laborious one. Besides attending to his official duties, he made a farm, performing a large part of the labor with his own hands. As a considerable portion of his time was necessarily passed in comparative quiet and solitude, he had here a rare opportunity for reading, reflection, and study; and possessing a small, though very good collection of authors in law, politics, and literature, he here gave his mind its permanent cast, and developed that vigor and breadth of understanding which he has evinced in his subsequent life. He has thus furnished another proof of the fact that intellectual development is best promoted in the midst of labors and in opposition to difficulties. Such is our nature that in order to make progress, we demand resistance and opposition. “Difficulty,” says Burke, “is good for man.”
When Judge Deady went to southern Oregon, society there was in an unsettled state, resulting from the newness of the country, the migratory character of the population, and the various incidents belonging to a community hitherto almost wholly devoted to mining and its kindred pursuits. There was much bustle and activity about the mines and in the principal towns; and for four or five years there had been a steady trade and intercourse with the Wallamet Valley and through the Umpqua river with California. The people hitherto, as is still the case in similar communities, had been governed mainly by their own local laws and regulations. It therefore devolved on Judge Deady to settle and administer the general principles of law among them. This necessitated great diligence and labor, and the exercise of much patience. He performed his duties with credit to himself and advantage to that portion of the Territory; and while he thus did much to give a consistent and permanent form to the jurisprudence of Oregon, he greatly enhanced his own reputation, and grew steadily and firmly in the confidence of those who knew him.
The subject of a State Government now began to be agitated. For several years successively it was submitted to the people of the Territory and rejected by them; but at length it was carried, and at the general election in June, 1857, members were chosen to meet in convention for the purpose of framing a constitution to be submitted to the people for their adoption or rejection. Judge Deady was elected a member of this convention from Douglas county. The members assembled at Salem in August, 1857. The conspicuous abilities of Judge Deady designated him as the person to be chosen to preside over the deliberations of the convention. He was therefore chosen President of that body, and took a leading part in framing the present constitution of Oregon. The labor of the convention was mainly performed in the Committee of the Whole, where he was always on the floor, participating in the discussions and assisting to give form to the constitution. Many parts of that instrument were either suggested by him or modified by his hand. He procured the insertion of the clause in relation to suffrage, which requires persons of foreign birth to declare their intention to become citizens one year before they are allowed to vote, a measure which is necessary in every State to insure the purity of elections. Others wished to allow the privilege of suffrage to every person of foreign birth who had been six months in the States, immediately upon his declaration of intention to become a citizen; a policy which opens a wide door for fraud, as it offers an inducement to persons to declare their intention to assume citizenship for the special purpose of voting, and puts it in the power of politicians to make use of them on special occasions to exercise an undue influence in elections. By his efforts, also, the official terms of Justices of the Supreme Court were made six years instead of four. In the convention there were those who advocated annual sessions of the Legislature and the election of the Governor and officers of the Administrative Department every two years. Judge Deady advocated biennial sessions of the Legislature and official tenures for the officers of four years’ duration, and his views were adopted. He was an earnest advocate of those provisions of the constitution which secure the State against the creation of large indebtedness, prevent the legislature from lending the credit of the State to any corporation, and prohibit counties, cities, and towns from subscribing money to corporate bodies, or creating excessive liabilities. Experience has shown that for an infant State these are wholesome restrictions. He opposed those clauses of the constitution which attempt to prevent the coming of Chinese and persons of African descent into the State, holding that such attempts to restrict intercourse were in conflict with the constitution of the United States; and it is proper to add that time has fully sustained his position. To present a statement of his whole agency in forming the constitution of Oregon, it would be necessary to give a review of that entire instrument; a review which would protract this sketch to a length that would, perhaps, be tedious to the general reader. After a session of six weeks, the convention perfected the constitution, adopted it as a whole, submitted it to the people, and adjourned. On the adjournment, the President addressed the convention as follows:
“I congratulate you upon the conclusion of your labors in so short a time, and with so little consequent expense to the country. For myself, while objecting to some of the provisions of this constitution, and looking to changes in time that will improve it, I accept it as it is. In reference to the question as to whether we are prepared to become a State, I have not been so sanguine as some individuals. Upon the questions of numbers and wealth, I think we are amply prepared. But a country requires age and maturity to prepare it to become an independent State and government. It is for the country to determine that question. For myself, I am willing to vote to enter into this new form of government, and the best reward I can wish you is that your constituents may approve your labors.”
The constitution thus submitted to the people was adopted by a considerable majority at the next regular election, which took place in June, 1858.
Judge Deady still held his official position on the bench in southern Oregon during the years 1857-58. At the general election in June, 1858— the first election held in Oregon for State officers— he was chosen without opposition as Justice of the Supreme Court for the Southern District of the State. The tender of this office by the unanimous vote of the people by whom his character as a man and qualities as a judge were best known, was a very flattering testimonial. He did not, however, accept the position; for when the State was admitted into the Union in February, 1859, he as appointed Justice of the United States District Court for the District of Oregon. The interval which elapsed between the surrender of his former position and the assumption of his new duties gave him an opportunity to visit the Eastern States. His tour extended to Washington and the principal cities, and enabled him to revisit his old friends and the scenes of his early life. He returned to Oregon after a tour of a few months, sold his farm in the Umpqua Valley, and in autumn of 1860 removed to Portland, where he has ever since resided.
He was now in a position which gave his powers a higher and a wider range. Being released from the merely statutory and mechanical labors which had hitherto devolved upon him in a judicial station, his pursuits were now of a nature much more congenial to his mind. His new position brought him to some extent within the domain of public and constitutional law; and on all occasions when his duties have required him to treat these higher questions, he has acquitted himself in an able and successful manner. To the performance of the duties of his new station, he brought mature intellectual powers, a mind ripened by study and impregnated with the original principles of jurisprudence, and a judgment thoroughly trained, cultivated, and self-reliant. Besides his purely legal attainments, he was well-versed in the multifarious learning which can be made subsidiary to the uses of a man occupying his position.
In 1860, the Legislature appointed three commissioners to prepare a complete Code of Civil Procedure for Oregon. One of these commissioners declined to serve, and Judge Deady was appointed to act in his place. The other two commissioners bore but a small part in the work, which was performed almost wholly by Judge Deady. In 1862, the Code was reported to the Legislature, and so well was it received that only one or two amendments, and they of trifling importance, were made in the whole work. The Code was enacted by the Legislature, and still remains, almost without alteration from the form in which it was originally adopted, the Code of Civil Procedure for Oregon.
At the session of 1862, the Legislature appointed Judge Deady to prepare a Code of Criminal Procedure for the State, to be reported to the Legislature at the next biennial session. His appointment to this work was a mark of approbation for his past labors, and testimonial of the high confidence that was reposed in his ability for the new task. He prepared the Code, reported it to the Legislature (1862 and 1864) to explain and settle any points which might be raised against portions of his work; and his success is attested by the manner in which that body promptly enacted the Codes almost as they came from his hands. The preparation of these two works was a very laborious task. To fix upon and settle a method for all legal proceedings, to make the work comprehensive and yet not redundant, and to adapt it to the wants of the people of a new State whose business pursuits and general interests required to be fully considered, was a labor of no small magnitude. That Judge Deady succeeded well is sufficiently established by the fact that after an experience of some years no material changes have been made in the Codes as first reported by him.
Since 1854, not attempt had been made to arrange and codify the laws of Oregon. From that time, the laws had been continually increasing in bulk and intricacy. Each successive Legislature had enacted such laws as real or imaginary wants, changing purposes or temporary caprice seemed to require. Some acts were continually undergoing amendment; other acts and parts of acts were as continually being repealed and reënacted, and additions were steadily making to the body of the laws. The whole was, of course, in great confusion. It was extremely difficult to know what the law was, and the change from a Territorial to a State Government, with the attempt to continue in force the old laws under the new regime, made the confusion and difficulty still greater. The Legislature resolved to provide a remedy. In October, 1864, the Governor was authorized to appoint a Commissioner “to collect, in the order and method of a Code, all the general laws of Oregon in force, under their appropriate heads, with marginal notes and references, as also a syllabus of each section at the beginning of each chapter or title, as the case may be, with a well digested alphabetical index of the whole.” As had been contemplated, Judge Deady was appointed to perform this important work. In necessitated great research and labor, and employed a large portion of his time for the space of two years. He personally superintended the passage of the work through the press, which added largely to the labor of the compilation. A brief extract from the preface may be given here:
“No labor has been spared to make this work what the Assembly intended— a complete compilation of ‘all the general laws of Oregon,’ arranged ‘in the order and method of a Code.’ The reader may never appreciate the trouble and difficulty involved in the compilation, in a codified form, of the scattered and oft-amended statutes of the State and Territory, covering a period of ten years of almost annual legislation. The change in the nomenclature of offices and officers, and the new distribution of their powers and duties, caused by the transition from a Territorial to a State Government, made the labor of compiling the statutes of the former period almost equal to re-drafting them.”
The result of the compiler’s labors was a volume of eleven hundred pages, in which the whole laws of Oregon were for the first time brought into an accessible and convenient shape. The compilation was accompanied with extensive and valuable annotations and references, and the whole was arranged in a systematic manner, making probably the most complete volume of the kind ever published on the Public Coast. It does honor to the name of its compiler and annotator, and “Deady’s Code” has often been spoken of with high favor and appreciation in places remote from Oregon.
For several years, beginning in 1862, Judge Deady furnished “Oregon Corresopondence” for the San Francisco Bulletin. He wrote thirty or forty letters a year, in which Oregon affairs and current topics generally were discussed in an original and attractive manner. These letters did much to bring Oregon into prominent notice in California and elsewhere. A pressure of official duties caused the discontinuance of the correspondence in 1866.
In February, 1867, Judge Deady was called to San Francisco to hold a term of the United States Circuit Court, in the absence of Justice Field of the Supreme Court of the United States. Prior to that time, Judge Deady had been known in California, but the bench and the bar of that State, with few exceptions, had no personal acquaintance with him. The duties that devolved on him in holding this term of Court were of a very delicate and difficult nature. The celebrated McCall-McDowell case was to be tried at this term; and it was a case which, from its nature and the circumstances attending it, had attracted very wide attention. The importance of the case, the interest that attached to it, and the comment it received, justify in this place a brief account of its origin and of the trial, together with a concise statement of the opinion of the Court and the principles on which that opinion was founded.
McCall was arrested in April, 1865, in an interior county of California, by order of General McDowell, for publicly rejoicing over the assassination of President Lincoln. Captain Douglas made the arrest. The prisoner was kept in custody for a short time at Fort Alcatraz, and then discharged. Some time afterwards, he brought an action in a California Court for damages against General McDowell and Captain Douglas, but the case was soon transferred to the Circuit Court of the United States. It was tried without jury. The Court held that as Captain Douglas had acted under the immediate orders of General McDowell, he was protected against an action for damages, and that General McDowell was solely responsible. The case was heard, and the Court awarded McCall damages in the sum of six hundred and thirty-five dollars. These damages were intended to be merely compensatory; and in rendering the judgment, the Court took into consideration, the number of days the plaintiff was under arrest, with his loss of time and expenses. It was stated in the opinion, that the language of McCall which provoked the arrest was “gross and incendiary,” and “well calculated at that moment of intense public feeling and anxiety to have brought harm upon the community.” Yet the speaking of the words “was not technically a crime.”
The defence maintained that the act of Congress of March, 1863, authorizing the President to suspend the privilege of the writ of habeas corpus, and declaring that any order by the President for arrest and imprisonment in the cases specified should be a sufficient defence to any action for prosecution, together with the Act of May, 1866, to indemnify all persons for any act done during the rebellion by order of the President or Secretary of War, afforded General McDowell complete defence against the prosecution. The plaintiff asserted that these acts of Congress were unconstitutional and void, and therefore that they afforded no defence. The Court held that Congress has power to suspend the privilege of the writ of habeas corpus, and in an elaborate argument showed that the Act of March, 1863, was constitutional and valid. The President was entrusted with power to enforce this act, and any order from him within its purview would, by the terms of the act, have been a good and sufficient defence to an action. But the Court found that, as a matter of fact, no order had been issued by the President to General McDowell to make such arrests, and that the latter therefore acted solely on his own responsibility in arresting McCall. The Court accordingly held that this arrest did not come within the purview of March, 1863, and that the proceeding was consequently without the sanction of law. General McDowell’s action was not taken in obedience to the orders of a superior, and therefore he could not plead in defence of the act of Congress. “The power of arbitrary arrest,” says the opinion, “is a very dangerous one. In the hands of improper persons, it would be liable to very great abuse. If every officer throughout the United States during the suspension of the habeas corpus is authorized to arrest and imprison whom he will, (as aides and abettors) without further orders from the President or those to whom he has specially committed such authority, the state of things that would follow can better be imagined than described.”
To protect the liberty of the citizen, and at the same time to take due care for the public safety, is, in times of great civil commotion, like those through which we had just passed, a matter of extreme difficulty for the persons who are entrusted with the civil and military administration. It is clear to everybody now that the arrest of such persons as McCall for their expressions of exultation on the occasion of the assassination of President Lincoln, was not indispensably necessary for the public safety; yet when those arrests were made this fact was not known. The people were not aware of the extent of the danger, and in view of what had transpired, it was natural for them to take alarm when men in all parts of the country were heard shouting in exultation because the head of the Government had been struck down by the hand of an assassin. That such people should, in some instances, have been arrested, is not a matter of surprise. Candid men must allow that under all the circumstances of that period of suspense, of doubt, of calamity, of sorrow and of righteous anger, the authorities showed singular leniency toward those who so far forgot what was due to the sense of the country, to their own honor and to good citizenship, as to express a turbulent joy at the perpetration of so great a crime. But the Court could not judicially consider these things. It found that utterances like those which McCall was proven to have made, however indecent in themselves or however offensive to a right-thinking community, did not constitute a crime; therefore, the person using such language was not liable to arrest or to legal punishment. That an officer who had simply arrested such person, under circumstances like these, without doing him other injury, ought to be protected against a subsequent action for damages, most people would probably think proper and just; but the Court, whose duty it was to declare and administer the law, had not this option. Judge Deady evidently felt the weight of considerations like these, as he remarked in his closing paragraph the “Congress might relieve a meritorious officer against a loss incurred in the discharge of his duty to the public; but in this tribunal, whose only function is to administer the law, the defendant must be held liable for the legal consequences of his act.”
By a large portion of the California press and public, this opinion was at the time very severely criticised. Others, however, did it justice, and recognized the unquestionable principles of law on which it was founded. Subsequently, it was generally acknowledged that the opinion was based on legal principles which could not be shaken. The ruling of the Court upon the point relating to the responsibility of officers making such arrests was virtually recognized as correct by an act of Congress, passed in March, 1867, declaring that all officers and other persons making such arrests should be held, prima facie, to have acted under the orders of the President.
At the same term of Court, Judge Deady rendered an opinion relating to the law of copyright, which touches an important branch of that subject, and strikes a sound principle in determining what sort of productions ought to be protected by copyrights and patents, for the use and benefit of authors and inventors.
Every patent and copyright is in the nature of a monopoly, and the Constitution and laws of the United States contemplate that privileges like these shall be granted only for useful purposes. The language of the Constitution is that these exclusive rights may be secured to authors and inventors, “to promote the progress of science and the useful arts.” But it would seem that the practice has gone far beyond the plain intention of the Constitution, since this protection is granted for almost every trifle, no matter how simple or common. Every gimcrack is protected by a patent, and by such protection large fortunes innumerable have been made; while many of the most useful discoveries have had no protection at all under the laws, and the persons making them, unable to obtain security for their rights, have lived and died in poverty. The case considered and decided on this occasion, grew out of a controversy about two dramatic compositions, or rather representations, in San Francisco. It was claimed that a certain so-called dramatic composition, known as the Black Rock, was an imitation or copy of another known as the Black Crook, which last composition had the priority of copyright. The person who claimed the exclusive right to exhibit the Black Crook in the State of California applied for an injunction to restrain the exhibition of the Black Rock.
It was very clear that one of the plays or spectacles was a colorable imitation of the other one, and the circumstances tended strongly to show that the Black Crook was the original, and the Black Rock the imitation or copy. It appeared, however, that the person claiming the exclusive right to exhibit the Black Crook in California had no literary property in that so-called composition, as he was neither the author, assignee, nor donee. How he had obtained possession of his copy did not appear, but he could produce no proof of legal ownership. Therefore he could not enjoin the other party from the use of the copy known as the Black Rock. To obtain an injunction preventing another from infringing upon a copyright or patent, the person applying for such injunction must himself have ownership or property in the composition or invention, or stand in the relation of agent or attorney of the owner. As the person who was exhibiting the Black Crook could produce no evidence of ownership or legal interest in the play, his application for an injunction against his rivals was denied. Incidentally whether such productions as these two plays were legally entitled to copyright. The laws require of dramatic compositions that, to entitle them to copyright, they shall be “suited for public representation.” As such exhibitions as those which on this occasion had carried their controversy into Court, promote neither “the progress of science nor the useful arts,” it would clearly appear that it is not within the constitutional power of Congress to encourage their production, and that they ought not to have the protection of the law of copyrights. Both plays were in fact little else than lascivious spectacles; and while the Court did not pretend to be the conservator of morals in this respect— rightly declaring that the regulations of such matters is the business of the Local Legislatures— it asserted that the protection of such exhibitions is not one of the objects intended to be secured under the Constitution and laws. This is a sound principle. It is clearly the intent of the laws that exclusive privileges should be granted to authors and inventors for useful purposes only. It degrades this high constitutional power to invoke it to protect frivolous discoveries and meretricious exhibitions.
In the Avery-Bigler case, which the Court considered and passed upon at this term, there was a general discussion of the subject of official tenures under the Federal Constitution and laws, and of the power to make removals from office. This case also attracted very general attention, not only in California but throughout the whole country, and did much to hasten the passage of the Tenure-of-Office Act by Congress. In his opinion, Judge Deady made a very clear exposition of the constitutional principles which govern appointments and removals, and thus elucidated a subject which, a short time afterwards, became a matter of very general discussion through the public press and among politicians.
His conduct and ability on the bench were highly approved by the able bar of San Francisco. It was the first time the members of that bar had had opportunity to become well acquainted with him; and after the term had closed, they testified their appreciation of his abilities and their respect for his character in the following preamble and resolution, adopted “at a meeting of the members of the bar practicing in the United States Courts,” and presented by the Honorable Thompson Campbell:
WHEREAS, the Honorable M. P. Deady, United States District Judge for the District of Oregon, has, by the allotment of the United States Supreme Court, presided over the United States Circuit Court for the District of California during the present term, and for the first time been brought into contact with the members of the California bar; therefore be it
Resolved, That upon Judge Deady’s departure from among us to return to his own District, the members of the bar of California desire to express their thanks to him for the cheerfulness and readiness which he has exhibited in the disposal of a large number of important cases, and that they must bear testimony to the judicial courtesy, ability, and learning with which he has performed his judicial duties, and has won for himself the respect, esteem, and confidence not only of ourselves, but of the public.
Thompson Campbell, Chairman.
George E. Whitney, Secretary.
San Francisco, April 26th, 1867.
Almost the whole of Judge Deady’s time is now taken up with his official duties. His labors in his own District have been steadily increasing for several years, and he devotes himself to his work with unceasing application or exposition of a subject. During the last five years, he has written and published, in the course of his official duties, elaborate opinions on a great variety of legal subjects, and his pen is now extensively employed in this way.
He was called to San Francisco again in February, 1868, to hold another term of the United States Circuit Court. It will be sufficient to say that on this occasion he sustained the reputation he had before established.
Judge Deady is a close observer of all passing events. Nothing escapes his attention. It is not too much to say that he is regarded as an authority in Oregon affairs, and that his opinions on public questions are consulted and treated with respect by the people of his State. He never attempted to acquire the art of extemporaneous public speaking. His mental constitution and habits are not such as would lead him to engage in it, or enable him to be successful before popular assemblages. He is too much like the man that Anthony professed to be— that is, “a plain, blunt man,” who “speaks right on.” He has no patience with small expedients and temporary fetches. But though he is not a man who is likely to acquire a showy and noisy popularity, he will always command public respect; and it is well known to those who know him intimately that no man more fully sympathizes with popular progress. In his estimates of men, he is charitable and generous, and for all young men he has words of encouragement. His political views are thoroughly national, and he believes with Marshall and Jackson that the Constitution of the United States forms a Government, and that it confers powers enough to contribute and maintain a nation. His mind is deeply imbued with the philosophy of history, and readily seizes upon the principles which underlie great political and social movements. His erudition is not merely of the showy kind, but it is discriminating, far-reaching, and comprehensive. His proper place is a judicial position, and it may be truly said that he is a man who has found his “sphere” in life. All admit that as a jurist he deservedly hold a high rank. He has explored the original sources of legal learning, and traced the many streams from their fountains to their confluence and expansion into the great system which forms the body of our jurisprudence. He is not slavishly attached to old forms; on the contrary, he has done much to eliminate useless rubbish of this sort from the jurisprudence of Oregon. But he has a genuine attachment and even enthusiasm for the simple and liberal spirit of the elementary principles of the common law. He has done much to promote a study of this system and inculcate a respect and reverence for it. The tendency of his mind in this regard cannot be better shown than by a paragraph or two from an address delivered by him in 1866 before the Portland Law Association, a society of young lawyers in the city where he resides:
I urge you not to remain satisfied with such a knowledge as may be gleaned from the modern codes an practice reports. Now, in the freshness and vigor of youth, turn your faces to the past and explore the fields of the common law. As you become conversant with its history, imbued with its spirit, and familiar with its terms and expressions, this will become a labor of love, and a permanent source of profit and delight. It will enlarge your understandings and enrich your minds. Get learning first, and riches afterwards.
Most of the great cases, which have arisen in the courts of the United States, have involved principles and the application of rules which had their root and origin far back in the life of the common law. Without a thorough knowledge and familiarity with these, the great advocates, who won imperishable fame in the trial of these causes, would have been comparatively unknown as lawyers, however great and commanding their native ability.
One word more. Now-a-days, it is the fashion in some quarters to sneer at the common law, as a relic of feudalism and barbarism, and to point to the civil law, as the proper source from whence to draw the jurisprudence of a highly civilized and refined people. But I caution you to beware of this spirit, and be not persuaded by it. I admit that the civil law is a great system, and the outgrowth of a great people. Upon the subject of contracts and kindred matters, most prominent in a purely commercial age, it furnishes a refined and enlightened role of construction and enforcement. As the people who have the common law for their inheritance, both in England and America, have become devoted to commerce, and increased in wealth and luxury, they have gradually enriched their jurisprudence by assimilations from the civil code. But the law of the Roman Empire is not conducive as a whole to the preservation of personal freedom and independence. It knows nothing of a free representative government, in which the people are continually trained to deliberate upon the public affairs and assist in the administration of the laws. Its principles, procedure and spirit are best adapted to a condition of things, where society is divided into an Emperor and his subjects - the former having an unlimited power of command, and the other only the duty of blind and unquestioning obedience. It knows no authority paramount to the will of the prince.
The laws of a people react upon them, and mould their character and opinions. The common law people - the English race - wherever they go, establish limited governments, with Parliaments and juries; but the people of the civil law - the Latin race - always come under some modifications of the empire, in which the will of the prince, emperor or chieftain, is the only and supreme law.
In so far, then, as we discard the fundamental principles of the common law and adopt those of civil, we are paving the way for the political and social condition of the Roman Empire, in the age of Cæsar - both good and bad. Probably this is the innate tendency and inevitable result of our Republic, with our diversified and agglomerated population and ever-widening territory.
But be this as it may, the common law is the source and panoply of all those features of our system which distinguish us from the subjects of absolute governments, ancient or modern, either by monarchs or majorities. It was made by freemen for freemen, and so long as you think these distinctions between it and the civil law worth preserving, you should cherish it in private, and exalt it in public.
As a writer, Judge Deady is ready, correct, and forcible, and the power of his pen is acknowledged by all who are acquainted with its productions. Nor are his best efforts in composition confined altogether to the “more weighty matters of the law.” A single illustration of his readiness and spirit as a writer may be given. In October, 1864, he was attending the session of the Legislature, then engaged in considering and passing the Code of Criminal Procedure, reported by him. The news of the death of General Russell, then lately killed in the battle under Sheridan in the Shenandoah Valley, had just reached Salem. Russell before the war had been stationed in Oregon, and had many friends and acquaintances in that State. A member of the Assembly introduced a series of resolutions eulogistic of the deceased and commemorative of his life and services. The resolutions were pitched on a high key, and among other things the expression in Measure for Measure, “to lie in cold obstruction,” was quoted. Some prosy wags took hold of the resolutions, and were disposed to laugh them down as hifalutin. At the request of their author, Judge Deady wrote and published as editorial the following brief article in the Daily Statesman of the 6th of October. It is presented here as a fair specimen of his off-hand composition:
The Assembly has before it a joint resolution to the memory of the late General Russell, long commander at Fort Yamhill, and lately killed in battle under Sheridan in the Shenandoah Valley. A printed copy of the resolution lies before us. We rather like it. As befits the occasion, it has the ring of the trumpet and a touch of true poetic fire. When a generous people desire “to honor the patriot dead,” or “to encourage their gallant living,” their language inventory of goods and chattels. Cold chronology or genealogy may properly speak of George Washington as an individual who was born, lived, and died in America, and came to be President of the United States. But the orator, the poet, and the painter, seeing in him a model and a mark for his countrymen in all ages, hallow him by the power of genius, and make him the “Father of his Country”—”First in war, first in peace, and first in the hearts of his countrymen.”
If you would have men die for their country, remember those who thus died. Let the memorial of the brave departed be such as to warm the hearts and elevate the aspirations of those who come after them. The dream of obtaining a monument among the illustrious dead of Westminister Abbey has done more to maintain the dominion, prowess, and prosperity of England than all the gold of her commerce, twice told and repeated.
Thus Rome deified the dead and inspired the living, until, with
The captain of the gate,
a Roman was ever ready to sacrifice himself for his country, exclaiming:
How can a man die better
Than by facing fearful odds,
For the ashes of his fathers,
And the temples of his gods?
The resolution is couched in the language of eulogy, and so it should be. This is no time to stop to count the spots on the sun, but to paint the radiant orb in full light. Let all that is moral of our countryman, “lie in cold obstruction,” but let our memorial be not only worthy of his death and the cause he gave his life for, but a peerless crown, to be worn again by the living, now and to come.
Judge Deady is thoroughly an Oregon man. He takes pride in his State, and believes in asserting her dignity and maintaining her importance as an independent community. The subjoined extract from an article which he wrote for a leading New England publication in the year 1867, furnishes some illustration of this:
As a people, we are much inclined to be satisfied with our own approval, and are not disposed to count or feed voraciously upon the applause of the outside world. Conscious of being in the possession of the best country and climate on the continent of America, and not wishing to “sell out,” upon any terms short of a billet for “that better land,” we are quite indifferent about advertising ourselves or our belongings. Unlike some of our speculative neighbors, we are not at all anxious to get rid of our bargain, or failing in this, to induce others to come forward and share our lot. But mistake me not. If any good folk see proper, without provocation or temptation upon our part, to visit or migrate to this modern Goshen of ours, we will welcome them in a plain way, and mayhap love and trust them when we have tried them and found them to our liking. More than this our amour propre will not allow.
And now, having offered meet incense to our proud provincialism, I may as well admit that I can see no harm, but haply some good, in giving you far off New Englanders an occasional reminder that our “lines are cast in pleasant places,” and that here in the valley of the Wallamet, and in the gorges and glens of its two enclosing and protecting mountain range, is growing slowly and surely the seat of future empire and wealth. Excuse me if I draw it mild, and write with the brake hard down. I dare not be as eulogistic as I might. I do not wish to make you discontented with your lot. However you may not regret it, you are not the blame because the Mayflower was driven by adverse fortune to land your amiable ancestors upon Cape Cod, while this country might have been had for the taking. Nevertheless, it seems probable that at no distant day the prolific Paddy will, by sheer increase of numbers, compel you frigid people to relaunch the ark of your progenitors and voyage forth to seek a new location for the Yankee nation. In such an event, the mistake of the Mayflower may be corrected. The adventurous Angles and Northmen, you know, tarried in the north of Europe for generations before they found their final home on the island of Britain. When your penates and pumpkin seeds are all safely on board and under the hatches, give your Palinurus sailing directions for the coast of Oregon. Once here, where wood and iron, wool and water-power are both indigenous and inexhaustible, you will find an admirable opening for the use of your national talents, both constructive and destructive.
The physical constitution of Judge Deady is remarkably good. His figure is large, well proportioned, and fully developed. He is now in middle life, and it may reasonably be expected that he has before him many years more of activity and usefulness.
Transcribed by: Jeanne Sturgis Taylor.
Source: Shuck, Oscar T., “Representative & Leading Men of the Pacific”, Bacon & Co., Printers & Publishers, San Francisco, 1870. Pages 85-109.
© 2008 Jeanne Sturgis Taylor.
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