Dangerous Subjects

A look at the history of Oregon's exclusion laws

George Washington Bush and his dog. Photo: Oregon Historical Society #11917-A

Oregon's 1844 exclusion law was at least in part a knee-jerk response to a perceived threat of racial violence—how large a part is debatable. The threat allegedly came from a free black named James Saules, who had been arrested for his role in what became known as the Cockstock Affair. Saules had been a cook, or a cabin boy, on the USS Peacock, a sloop-of-war used as an exploration ship that broke up on the Columbia River bar near Astoria in July 1841. The entire crew was saved. Saules chose to stay in Oregon where he subsequently married a Native American woman.

In 1844, Saules and a Native American named Cockstock—a member of the Wasco tribe—fell into an angry dispute over a horse. The horse allegedly had been promised to Cockstock by another free black, Winslow Anderson, as payment for work on Anderson's farm; Anderson was a former fur trapper who had lived in Oregon since 1834. However, Anderson sold his farm and horse to Saules, who declined to turn the horse over to Cockstock. The dispute escalated into violence when Cockstock appeared near Oregon City with several tribal members on or about March 4, 1844, and a fight broke out, involving arrows and guns. Cockstock and two white men, Sterling Rogers and George LeBreton, were killed. LeBreton was clerk and recorder for the provisional government. According to one version, Cockstock may have been killed by Anderson.

Local whites blamed Saules and Anderson for the incident and threatened Saules' life. Saules was taken into custody and both he and Anderson were “encouraged” to leave the area. They moved to Clatsop County in northwestern Oregon. Yet another version—the facts are impossible to pin down—was that Saules threatened to incite his wife's people to “a great interracial war” unless he was released. That Saules on his own could rally Native Americans to such violence is, in retrospect, improbable. But improbability was beside the point. According to historian Gordon B. Dodds, the incident “triggered further racist sentiment” among settlers already hostile toward blacks.

The Cockstock affair and other incidents in which Saules was involved led the resident Indian agent, Elijah White, to recommend to his supporters in Washington, DC, that African Americans be banned from Oregon as “dangerous subjects.” Writing on May 1, 1844, to Secretary of War J. M. Porter, White noted that he had sent—in effect, banished—Saules to live in present-day Clatsop County following the Cockstock incident. White said that although Saules 

remains in that vicinity with his Indian wife and family, conducting [behaving], as yet, in a quiet manner, but doubtless ought to be transported, together with every other negro, being in our condition dangerous subjects. Until we have some further means of protection their immigration ought to be prohibited. Can this be done?

[Historian Eugene Berwanger] has written that while the Cockstock incident itself was the “immediate impetus” for the 1844 exclusion law, the greater influence was probably White's letter urging action to exclude blacks. The law was enacted in June, three months after the incident. In the words of Quintard Taylor, a University of Washington historian, the significance of the exclusion law should be seen more “as a symbol of the evolving attitude toward future black migration, than as a measure that would immediately eliminate or reduce the ‘troublesome' black population.” That Anderson and Saules could avoid punishment by moving to a less populated area illustrated the ineffectiveness of provisional laws.

***

Although the legislative committee abolished the 1844 exclusion law in 1845, the first territorial legislature enacted a new exclusion law in September 1849. Once again, fear of an alliance between blacks and the tribes was a contributing cause, or at least an excuse. Fear of the tribes was heightened by the massacre of Marcus and Narcissa Whitman, and eleven others, on November 29, 1847, by members of the Cayuse tribe at the Whitman mission near Walla Walla. 

The preamble to the new law declared it would be “highly dangerous to allow free Negroes and mulattoes to reside in the Territory, or to intermix with Indians, instilling into their minds feelings of hostility toward the white race.” The law easily passed the House of Representatives by a vote of twelve to four on September 19, but it was challenged in the nine-member Council. Wilson Blain of the then-Tuality County objected to even considering the bill. However, it was narrowly approved by a vote of five to four on September 21, 1849. Nathaniel Ford cast one of the five votes in favor.

The 1849 law did not apply to African Americans already in the territory, but newcomers would have to leave. Section one stipulated:

It shall not be lawful for any negro or mulatto to enter into, or reside within the limits of this Territory. Providing that nothing in this act shall ... apply to any negro or mulatto now resident in this Territory, nor shall it apply to the offspring of any such as are residents.

A first violation would result in arrest; a second violation could cause the “negro or mulatto,” if convicted, to “be fined and imprisoned at the discretion of the court.” Black seamen were singled out for special mention. Ships frequently included African Americans as crewmen, and the framers of the law clearly didn't want them jumping ship in Oregon. “Masters and owners of vessels” were made responsible for the conduct of black seamen “and shall be liable to any person aggrieved by such negro or mulatto.” Masters and owners had forty days to remove them from Oregon, or face possible imprisonment and a fine of up to $500. The provision aimed at black crewmen was probably influenced by the behavior of the former seaman, James Saules, who continued to pose problems. The Oregon Spectator [an Oregon City newspaper] reported on December 24, 1846, that Saules had been charged with murdering his Native American wife, but “is at large and likely to remain so,” suggesting that authorities were reluctant, or unable, to track him down.

***

There was one known expulsion of an African American under Oregon's exclusion laws, although there may well have been others not recorded. The expulsion was of Jacob Vanderpool, said to be a sailor from the West Indies who arrived by ship in 1850 and took up residence in Oregon City, where he apparently operated a boarding house. Vanderpool was arrested and jailed in August 1851 on a charge of violating “the statutes and laws of the territory,” specifically the 1849 exclusion act. The complaint was brought by Theophilus Magruder, who had served briefly as the territorial secretary of state in 1849, and, at the time he brought his complaint, was proprietor of the Main Street House, a well-known hostelry in Oregon City. Magruder may have sought to remove a business competitor.

The Vanderpool case went to trial in Oregon City on August 25, 1851, before Judge Nelson, the same Territorial Supreme Court justice who, the following year, would be the first to hear the suit brought by [Missouri slaves] Robin Holmes against Nathaniel Ford. Vanderpool's lawyer, A. Holbrook, mounted an aggressive, but unsuccessful, defense. He argued that the 1849 exclusion law violated several provisions of the US Constitution, including Article 4, Section 2, which said, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” He also contended enactment of the legislation was “not within the jurisdiction of the Legislative Assembly of Oregon” and, moreover, had been improperly executed. Three witnesses spoke to Vanderpool's good character.

Judge Nelson issued his one paragraph ruling the following day, on August 26, finding Vanderpool guilty of violating the 1849 exclusion law, and ordering him “removed from the said territory within thirty days.” Nelson didn't address any of Holbrook's arguments. The outcome was reported in the Spectator on September 2, 1851, with the newspaper's explanation to readers that since the 1849 law was on the books, it should be enforced:

There is a statute prohibiting the introduction of negroes in Oregon. A misdemeanor committed by one Vanderpool was the cause of bringing this individual before his Honor Judge Nelson and a decision called for respecting the enforcement of that law; [Judge Nelson] decided that the statute should be immediately enforced, and the negro shall be banished forthwith from the Territory. There is no use of enacting laws if they are to remain a dead letter on our statute book. A notorious villain, who calls himself Winslow, has cursed this community with his presence for a number of years. All manner of crimes have been laid to his charge—we shall rejoice at his removal. Thirty days are allowed them to clear the Territory.

The reference to Winslow was no doubt to the same Winslow Anderson involved in the Cockstock incident. It is unlikely Anderson was threatened with expulsion—he was a resident of Oregon before enactment of the 1849 law, which was not retroactive. The newspaper's editor must have been expressing his wish that a way could be found to expel him. Instead, Anderson would meet with a violent death in July of 1853 in what a jury ruled was “death by violence ... a blow to the side of the head.” Apparently, no one was held accountable. In its article on the Vanderpool case, the Oregon Statesman said Nelson ruled that the 1849 exclusion law was “constitutional” and “the reaffirmation of a well-settled doctrine.”

There was at least one other expulsion order, this one directed at O. B. Francis and probably also his brother, Abner Hunt Francis, a well-known abolitionist. Recently arrived in Oregon, the brothers, both free blacks, had opened a mercantile store in downtown Portland in 185l.

Abner Francis had been an anti-slavery activist in Buffalo, New York, before coming to Portland. He was also a friend of prominent black abolitionist Frederick Douglass and contributed articles to Frederick Douglass' Paper. Francis' background and connections to the abolitionist movement may have aroused concern among Portland's anti-black whites, or perhaps the new store alarmed a white competitor. Whatever the motivation, O. B. Francis was arrested while Abner was out of town and charged with violating Oregon's exclusion law. A justice of the peace ordered O. B. to leave Oregon within six months.

Judge O. C. Pratt of Oregon's Territorial Supreme Court upheld the order after hearing the case on appeal on September 16, 1851, even reducing the time Francis could remain in Oregon to four months. In a letter to Frederick Douglass on October 30, 1851, Abner Francis suggested the exclusion order also applied to him. He wrote that they had been expertly defended by Frank Tilford, a former San Francisco judge, who argued that under the U.S. Constitution “citizens of one state had a right to enjoy the same privileges that the same class of citizens enjoy in the state which they visit” and, moreover, that the law was unconstitutional because it lacked a provision for a trial by Jury.

Judge Pratt disregarded these arguments, Francis said, and “we now stand condemned under his decision, which is to close up business and leave the territory within four months.” In his letter, published in Douglass' newspaper on December 11, 1851, Francis said he wanted to alert people

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

The exclusion order brought an outpouring of support for the Francises. In December, a petition with two hundred and eleven signatures urged the territorial legislature to repeal or modify the law. It said, in part:

There are frequently coming into the Territory a class of men to whom this law will apply. They have proved themselves to be moral, industrious, and civil. Having no knowledge of this law some of them have spent their all by purchasing property, or entering into business to gain an honest living. We see and feel this injustice done them, by more unworthy and designing men lodging complaint against them under this law, and they thus [were] ordered at great sacrifice to leave the Territory.

The lengthy petition went on to say that the reason for the law, the alleged “dangers arising from a colored population instilling hostility into the minds of the Indians, has ceased.” It urged “that a special act may be passed at the earliest period possible, permitting O. B. and A. H. Francis, citizens from the state of New York, located in business in Portland[,] to remain, having committed no crime.”

Representative John Anderson of Clatsop County introduced a bill on December 9, 1851, to allow blacks to remain in Oregon if they posted a bond and pledged that the “Negro or mulatto will ... conduct himself as a good and law-abiding citizen of the Territory.” However, the Legislature declined to modify the law.

It's not clear that the legislature voted on the appeal for the Francises. However, they were allowed to stay. Abner Francis and his wife, Lynda, remained in Portland until 1860, when they moved to Victoria, British Columbia, where Abner was elected in 1865 as the city's first black city councilman. He died in 1872.

Another attempt to enforce the law in 1854 was aimed at Morris Thomas of Portland and his family. Thomas, “a free man of color,” was married to Jane Snowden, a servant in the household of Andrew Skidmore—the Skidmores were a prominent Portland family. A petition with one hundred and twenty-seven signatures was sent to the legislature seeking to give Thomas an exemption. It said Thomas was “an industrious, peaceable, well-disposed mulatto man” for whom the exemption “will be of no detriment to the welfare of the Territory or the interests of any citizen.”

An exemption bill was introduced in the House on January 25, 1854. It passed the House by a vote of nineteen to three, but the Council deadlocked four to four, after which it was tabled, with no further action. However, Thomas remained in Oregon—it isn't clear why. Perhaps authorities chose to look the other way. Another possibility is that the legislators anticipated that the 1849 exclusion law was about to be repealed in a new legal code.

***

One African American emigrant deterred by Oregon's first exclusion law was George Washington Bush, a Pennsylvania-born free black who had been a prosperous farmer in Missouri. Bush and his family were among six families who were part of the Gilliam wagon train that left from St. Joseph, Missouri, in 1844. They called themselves “the Independent Colony” and were headed by William Simmons, a close Bush friend and second in command to Gilliam. John Minto, who also traveled with the Gilliam party, became an admirer of Bush and his accomplishments: “Not many men of color left a slave state so well-to-do, and so generally respected,” he wrote. “But it was not in the nature of things that he should be permitted to forget his color.” Minto said Bush confided during the trip that “if he could not have a free man's rights” in Oregon, “he would seek the protection of the Mexican government in California or New Mexico.” After arriving in Oregon, Bush stayed the winter in The Dalles to take care of the emigrants' livestock, after which he turned north, not south in 1845, becoming one of the first American settlers, and probably the first black settler, north of the Columbia River. 

Bush moved with Simmons and others to the south end of Puget Sound, near present-day Olympia. It placed Bush beyond the reach of the provisional exclusion law, as the region north of the Columbia was then under the nominal control of the British government. Bush may have been influenced in his choice of destination by Dr. John McLoughlin, chief factor of the Hudson's Bay Company. Up to that point, the powerful British company had discouraged Americans from settling north of the Columbia. However, McLoughlin was said to be sympathetic to Bush's situation.

Bush became a successful farmer, homesteading six hundred and forty acres near present-day Tumwater. One account said he introduced the first mower and reaper to farmers in the region. [The late journalist Fred Lockley wrote in 1916 that] by dint of [Bush's] status as a leading citizen, he also inspired in others “a respect for color” that extended well beyond his own community. He had helped several white families buy provisions and outfits for the journey west in 1844. And after they arrived, he continued to help some neighbors who became destitute. Bush's widespread support in the white community became apparent when he was threatened with the loss of his land. After Washington was organized as a territory in 1853, Bush's homestead was in jeopardy, as the Donation Land Act of 1850 excluded blacks from obtaining the free land. However, fifty-five citizens signed a petition urging an exemption. The appeal was endorsed by the Washington Territorial Legislature and forwarded to Congress, which approved the exemption in 1855. Today's Bush Prairie is named for Bush.

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My family was on that wagon train with George Washington Bush

trudi Swain | September 2017 |

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