An Overview of the Convention Process

Drawing of newspaper boy holding up paper. It reads "Read a sensational story about the convention."
Read a sensational convention news story!

As the middle of August 1857 approached, delegates converged on Salem for the convention that would create a framework for a new state. The political debates in anticipation of the convention had intensified in the weeks before the delegates convened on Aug. 17, with slavery as the dominant issue. Democrats rightly feared that full debate on slavery could fatally split the convention before it started. Instead, they engineered plans for separate and direct votes of the people on slavery and the immigration of free blacks, thereby practically removing the issue from the convention agenda. Largely freed of the paralyzing prospects of making decisions about the "peculiar institution" of slavery, the delegates set about more mundane questions. They started with decisions about the process and organization of the convention. Footnote ***

Not Starting from Scratch

Drawing of Marion County Courthouse with a-frame roof and bell tower in center.
The Marion County Courthouse was the site of the convention.

The delegates knew there was no need to start their work with a blank slate. Rather, they could pick and choose provisions from constitutions that had come before. Not surprisingly, they were heavily influenced by constitutions from their old home states, mostly in the Midwest. Delegate Frederick Waymire gave voice to this view: “We might as well take old constitutions that the people are familiar with, as to try to strike up into something new, that we know nothing about. If [I] was sent here to form a new Bible, [I] would copy the old one, and if [I] was employed To make a new hymn book, [I] would report an old one—they are better than any [I] could make.” Because of this, he optimistically looked forward to ending the convention in 15 days. Footnote 1


Worn, faded cover reads "Constitution of the State of Indiana."
Democrats decided to use the Indiana Constitution of 1851 as a template for their work.
And as luck would have it, Chester Terry, a recent immigrant from Indiana, carried a copy of that state's constitution with him. The Democrats, at the urging of influential Delazon Smith, agreed to use it as the starting point for the deliberations. But through the course of the convention, it became clear that many delegates were familiar with the constitutions of other states including Iowa, Wisconsin, Ohio, Michigan, Maine, New York and others. Footnote 2

Some would argue that perhaps the Oregon framers relied too much on other states, at the expense of originality. Writing about the convention in 1995, Oregon judge David Schuman dryly distilled their work to its essence: "The sixty drafters, most of whom were farmers, produced a state charter remarkable only for its conventionality and small-mindedness; 172 of its 185 sections were copied from other constitutions, and the thirteen original ones consisted almost entirely of various racial exclusions and measures limiting state expenditures." Footnote 3

The Haves and the Have-nots

James Kelly in a suit and tie wearing glasses and a serious frown on his face.
Delegate James Kelly argued that the expense of hiring a reporter for the convention would be "comparatively trifling." (Image no. 04922v courtesy Library of Congress)
The Democrats, with their strong majority, quickly set out to control the process and move their agenda forward as proceedings began. Not surprisingly, Salem Clique stalwart Matthew Deady was elected president by a vote of 39 to 15 over anti-Bush Democrat Martin Olds, who was favored by a mix of Whigs, Free-State Republicans and others. The Democrats also swept other convention offices such as secretary, assistant secretary, sergeant-at-arms, doorkeeper, and printer. Footnote 4 Deady then appointed seven-member standing committees to draft articles of the constitution. The committees included executive department, legislative department, judicial department, education and school lands, military affairs, seat of government and public buildings, corporations and internal improvements, boundaries, suffrages and elections and bill of rights. Befitting his party's numerical advantage, Deady made sure to have plenty of Democrats sitting on each committee and he placed trusted insiders as chairmen of key panels. Footnote 5

Anti-Democrats, while lacking in real power, had plenty to say during the course of the convention on how the majority wielded power. Thomas Dryer, David Logan and others admitted that the Democrats had the ability to essentially dictate the outcome. But, according to historian David Alan Johnson, they claimed, "the solidarity of the majority party rested only on shaky, and illegitimate, grounds of personal interest, embodied in a spoils system through which Democratic leaders assured personal control by dispensing and withholding patronage crumbs to the rank and file." Footnote 6 Early on, the anti-Democrats charged that their opponents were engineering the process to maximize their chances to hold new government offices that would result from statehood. According to a newspaper account, angry discussion led to the charge "that the majority were disposed to 'gag' and 'cram measures down the throats' of the minority." Footnote 7

No Official Reporter

Page from the convention journal shows small cursive writting too small to read.
Sample page from the convention journal. The journal was the only official record produced, but didn't document the substance of the debates. (Oregon State Archives image) Enlarge image.

The first day of the convention the delegates decided not to hire an official reporter of debates, despite several arguments in favor. James Kelly, in proposing a reporter, noted that the expense would be "comparatively trifling," not more than 500 dollars. In his view, "a convention of this character, involving as it does the very organization of the state, happens only once in an age." Saying it would be "penny wise and pound foolish" to let "this convention pass to oblivion," he argued that they had a responsibility to posterity since the proceedings would be "sought after as a matter of the historical record, and I do think that we ought not let them pass by and go out of the memory of man...." Footnote 8 Long-winded orator Delazon Smith added a somewhat ironic argument in favor of a reporter, saying that recording the debates would help preserve decorum because “the knowledge that every word that is uttered within these walls will go upon the record may prove, if there be danger of excess, a check upon those who might be disposed to indulge in improprieties here.” Footnote 9

But the concern for posterity apparently fell victim to the larger interest in frugality and the task of recording the proceedings fell to the newspapers. The convention did keep an official journal but it only rarely documented the substance of the debates. Newspapers carried long accounts of the proceedings and those of the Oregon Statesman and Oregonian were republished in 1926 by Charles H. Carey in The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857. The accounts, considering the strongly partisan viewpoints of the newspapers, are not always reliable. Each reported the speeches favorable to his own paper's position carefully while devoting less attention to opposing views. As time went on, some of the descriptions of long debates were reduced to reports such as "upon this quite a lengthy and animated discussion ensued." Footnote 10 Of course, the reporters had their own perspective on speeches that went on "ad infinitum," as the Oregonian reporter described early in the convention:

Moving the Proposed Articles Forward

Worn and wrinkled page from the U.S. Constitution. The only readable words are "We the People" and later "Article 1"
Thomas Dryer balked at the motion to require delegates to swear an oath of allegiance to the U.S. Constitution.
The process of moving draft articles through the convention generally followed a typical legislative pattern. In its simplest form, a committee would compose and report a draft article. The text was given a "first reading" after which it was "passed to a second reading" with no debate. The purpose of the first reading apparently was to offer the committee's draft to the convention as a whole, allowing all delegates to formulate arguments and amendments. The second reading presented the text for serious consideration and debate. Upon motion, the entire convention would temporarily "resolve itself" as a committee of the whole to debate and amend a particular article. The article was then "engrossed" or put in final form before it was given a third reading and a vote by the entire convention. At the end of the convention, all approved articles were "enrolled" or placed in a single document and reapproved together as the constitution. Of course, numerous procedural maneuvers soon surfaced to complicate the path of some of the more controversial articles and added significantly to the length of the debates. Footnote 12

Smaller Questions of Process

The delegates settled other issues related to convention process in the first days. For instance, they debated the use of honorific titles (e.g., the honorable Mr. Smith). Thomas Dryer argued that the practice smacked of "bombastic egotism," saying that "whatever position gentlemen may occupy outside, upon the floor they are all equal." His colleagues agreed, deciding to use a simple "Mr." After considerable debate, the delegates tabled a motion requiring them to swear an oath of allegiance to the U.S. Constitution. During the discussion, John Kelsay pointed to previous conventions in which oaths were taken without question, but once again, Thomas Dryer rose to ridicule the idea: "Perhaps [Kelsay] may need some sort of shackles or bridles upon his conscience to keep him in subjection. But, sir, I will obey the constitution... [without an oath]." Footnote 13 Delegates also chose to do their smoking outside of the convention room and decided they could succeed in their work without the services of a chaplain. Footnote 14

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Notes

  • *** For a systematic and exhaustive examination of the Oregon Constitutional Convention, see: Claudia Burton and Andrew Grade, "A Legislative History of the Oregon Constitution of 1857—Part I," Willamette Law Review 37 (2001); Claudia Burton, "A Legislative History of the Oregon Constitution of 1857—Part II," Willamette Law Review 39 (2003); and Claudia Burton, "A Legislative History of the Oregon Constitution of 1857—Part III," Willamette Law Review 40 (2004). These articles proceed step by step through the articles of the constitution. They include extensive analysis of contemporary accounts of the convention and opinions of various newspaper writers. Most significantly, they tap into previously unresearched resources such as initial committee reports, amendments, and engrossed articles. These documents provide a fuller legislative history of the convention and in many cases new insight into the intent of the framers.
  1. Carey, Oregon Constitution, 109.
  2. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 172.
  3. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 611.
  4. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 173.
  5. Ibid.; David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 619.
  6. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 174.
  7. Ibid, 175; Carey, Oregon Constitution, 199.
  8. Carey, Oregon Constitution, 59-60.
  9. John J. Dinan, The American State Constitutional Tradition (Lawrence, Kansas: University Press of Kansas, 2006) 25.
  10. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 622.
  11. Carey, Oregon Constitution, 86.
  12. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 620-621.
  13. Carey, Oregon Constitution, 68-69.
  14. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 619.
  15. David Alan Johnson, Founding the Far West: California, Oregon, and Nevada, 1840-1890 (Berkeley: University of California Press, 1992) 66-69.