The book Nimrod — Courts, Claims And Killing on the Oregon Frontier, recently published by the Washington State University Press, tells the true story of Nimrod O’Kelly, an Oregon frontiersman, who killed a claim jumper in 1852, at a time when Oregon pioneers were entitled to take as much as one square mile of land at no monetary cost. The Oregon Supreme Court decision — Oregon Territory vs. Nimrod O’Kelly — appears at page 52 of the first volume of the Oregon Report. The story furnishes the background for the genesis of Oregon land law and the Oregon judiciary. The following is an excerpted version of the first chapter of Nimrod.
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East are the Cascade foothills. The west horizon is the Pacific Coast Range. In between is the valley of the Willamette River. Back then it was just called "the Valley." And the Valley was tucked within a vast country called "Oregon," bordered by the Rockies, California, Canada and the Pacific. The fences and fields of the Valley were not always so — not back then — not in the time of the tale here told. That tale began at this spot. What is now the smell of fresh plowed dirt was then the smell of prairie grass. What is now the sound of motors on the highway and a harvester in the next field was then the sound of the wind coming off the buttes and down the rivers and sloughs, making whispers on the sward. It was all an ocean of prairie with floating meadows of wildflower, pocked with islands of scrub oak, rimmed by cottonwood groves and stands of fir, pine, ash and cedar. But mostly it was grass — grass shoulder-high for cattle to feed on and get lost in.
The Indians of the Valley called the grass kalapuya. They were the tenders. They burned the fields to keep back the forest and to make the gardens — then, but not any more. Pioneer settlers from the East saw it as good farm and pasture land — enough fir and pine for siding, ash for stakes, cedar for posts and paling, oak and alder for fire, grass for livestock, creek and rain water for crops, spring water for drink and fish and deer plenty for belly. Through the center of the Valley ran the Willamette River, as it does now, fed here by nearby streams like Mouse River, Muddy Creek, and, closer still, the Long Tom. All of that runoff was laced by gullies and sloughs that gave shed and drink to the earth. Any farmer could see the kalapuya was prime growing country.
The whole Willamette shed was 180 miles long and in some places 60 miles wide. And right here was the heart of it. Close by and a bit to the west there used to be a wagon trail weaving south to the top of the Valley. The trail was on a lie with where the highway is now. Back then, of course, the trail was just dirt, first carved by the hooves of dear and elk and the moccasins of the Indians of the kalapuya, then by the engagés of the Hudson’s Bay Company, then by the wagons of the forty-niners who went south five hundred miles when gold was struck— some called it "the Gold Miners’ Road." Eleven miles north, the trail cut through the village of Marysville. A few days farther north at Oregon City, the route connected to the Overland Trail, which headed back to the States – 2,000 unfriendly miles away.
That large hill two miles north is Winkle’s Butte, called such because settler Isaac Winkle was the first to lay claim to it. At the foot of the butte and to the west was Winkle’s neighbor, Richard Irwin. Irwin had a store at trailside. They called it Jennyopolis. Headed south, the trail came upon the Starrs Point store four miles away. Farther south, the trail passed Ya-po-ah Butte and Skinner’s post office. Still farther, maybe 10 days’ ride, beyond the Valley and beyond the Umpqua and Rogue country was the top of the Siskiyou divide — the end of the Oregon Territory and the start of a newly made state in the Union called "California."
That was the lay of these surrounds on Saturday afternoon, May 22, 1852.
A number of men gathered here in what was then a dried up slough—a backwater bed for the Long Tom River in winter rains. Just southeast about 130 steps there was a small, one-room, log settler’s cabin with some pelts, racks and other signs of the hunter pegged to the walls. The day was sunny and cheery, but no cheer was in these men’s faces. Their jaws were long and squared by duty. Some stood; some were in saddles. Some were silent, some had heads together in whisper. All were fixed in vigil on a single purpose. Their purpose lay dead at their feet in the dry, cracked crust of the slough. It was once a human soul.
Flies buzzed around a giant wound in the carcass — a huge hole running from the nipple and across the chest and neck to the chin. Crows and other scavengers had been the first to smell out death. The body, a young man, was bent stiff into a clutch over the wound. It’s "rigor’d" bones would have to be made straight for a fit into the fresh lumbered box on the back of a buckboard nearby. An undertaker measured the dead man’s arms and legs with a tailor’s tape. But this assembly was more than a burial. Other offices came first. There were no women or widow at this vigil. The business of this afternoon was left to menfolk.
The sun was getting hotter now, kindling patience and bringing to boil the need to finish up and get the ripening corpse into dark and cool ground. One of the men, Roland B. Hinton, came forward over the body and broke into the still of the moment with his best official voice. He proclaimed that he was the justice of the peace and that he was appointing Richard Irwin to be the coroner for this inquest "over the dead body of Jeremiah Mahoney two miles south of Jennyopolis in the County of Benton, Territory of Oregon on Saturday, May 22, 1852, about 130 steps from the dwelling house of one Nimrod O’Kelly."
Irwin stepped out of the crowd and put a hand to heaven so Hinton could give him this oath. * * * Irwin, the Jennyopolis store owner, took over the proceedings. In a voice rich with the accents and rhythms of his Irish birth, Coroner Irwin called on the sheriff to muster a coroner’s jury. Sheriff Sam Starr was ready. He called out 12 names, and 12 men moved away from the crowd into a separate group. The jurors were all settlers in that nearby countryside.
The new law
This was all brand new business for Benton County. White civilization had come to this part of the Valley just seven years before. Now came the county’s first murder. The laws that reckoned with murder were leather fresh and would take some breaking-in. * * * The task was two-fold: Did this soul likely die by homicide; and if so, by whose likely hand? The first would be easy. That hole in the breast was a shotgun blast. Shot and slugs had penetrated six inches and most surely made death come. Because no shotgun was found in sight, it was not likely accident or suicide. The second task was a bit more puzzling but not unsolvable. Strange and telling was the absence of one man from the inquest. After all, he had the shortest distance to come. His bed was just 130 steps away. Where was Nimrod O’Kelly? The slough bed, the cabin, the gatherers and the corpse were all on the land O’Kelly claimed. All knew of O’Kelly’s crust—a jackstraw, lone wolf and poor neighbor with a sour attitude and no kin. That taint and his absence gave focus and headstart to the job at hand.
Jeremiah Criss, James Barclay and Tom Richardson came forward as witnesses. * * * All three testified that on that very morning about seven or eight o’clock, Missus Mahoney had reported to them that her husband had been missing all night. She asked them to search for him. Their search took them, they said, in the direction of a shotgun blast that Criss had heard yesterday, between noon and two o’clock. That direction was through the kalapuya toward O’Kelly’s cabin. As their track came within sight of the cabin, they went across this dry slough and found the body of Mahoney "where it is as it now layeth," so said all three.
From that discovery, rounding up the sheriff, a magistrate and others to serve as coroner, jurors and deputies was done in a matter of hours and on a lot of horseback. Folks had to put aside farm chores and tend to civic duty. But the call was not just born of duty. On a frontier parched by dry routines, slaking thirst with the excitement of murder and inquest took no great wheedling.
Coroner Irwin asked the witnesses, "Do you know of any person threatening to take the life of the deceased?" Criss answered first. He testified that the deceased Mahoney told him some time back that "O’Kelly had frequently forbid him from passing on his [O’Kelly’s] premises to his [Mahoney’s] work in the timber" and in the future Mahoney "would do it at his own Risk." Mahoney had settled in the area just two months prior; so, it was true that he would have been busy building a cabin for his wife and himself and their four-month-old baby. Fetching timber would have taken him across O’Kelly’s claim toward the wooded banks of the Long Tom. From the slough the new roof of the Mahoney cabin could be seen just a half mile to the north and west. Young Tom Richardson testified that O’Kelly some weeks ago had asked Tom to tell Missus Mahoney that, "if she wished to live in peace and happiness hereafter" that she had best "advise her husband to move a way." * * *
Coroner Irwin told the jurymen to go off and come to a verdict. They went over and examined the dead carcass of Mahoney and counted 37 buck shot wounds and three or four slug wounds—all from a single blast. They probed some of the wounds and found six inches of penetration. Nods and words passed between them. Tails, hats and hands swished at flies on the cracked, dry slough bed. In short order, jurymen came together as jury. The verdict was written out and signed by each:
"We, as Jurors, Report, as our Verdict, that the Deceased Jeremiah Mahoney came to his Death by Wounds inflicted in his neck and Breast by Shot and lead slugs! Shot out of a Shot Gun or Musket, By one Nimrod O’Kelly from Evidence before us! The wounds of which being sufficient to take life."
The arrest warrant
* * * Coroner Irwin put pen to paper, made out a coroner’s arrest warrant, and handed it to Sheriff Starr.
"Sir you will proceed and take the Body of Nimrod O’Kelly if found in your County or Territory and bring the same to the nearest Majestrate in your County to answer the charge of the murder of one Jeremiah Mahoney…"
The justice of the peace had previously given the task to the coroner. The coroner had passed it on to the jury. The jury handed it back to the coroner. And now the coroner was sending it along to the sheriff. Sheriff Starr was not to be outdone. He too knew how to delegate. He took the coroner’s warrant and wrote on the back of it that he "hereby intrusted" the arrest to certain deputies. He thereupon deputized four men. * * *
The farewell and welfare
After checking with Justice of the Peace Hinton, Coroner Irwin said done to the doings. Mahoney’s body could now be lifted up and taken to his widow where undertaker Irwin White would suit him up and box him. The whole inquest would cost the county $30.90. * * * The undertaker also put in a claim with the county for $3.75 for grave clothes. Likely it would be the first time that Mahoney was in a suit since his wedding day. Likewise, Isaac Winkle would charge the county $2.00 for the coffin lumber. The county commissioners paid both claims, albeit it was customary for the dead man’s estate to pay for the burial. Perhaps the pay of the county was just a kindness — a farewell to the deceased and a welfare to the widow — her chance to see the last of her mate in the same tucker as she had seen the first of her groom. It is one thing to pester government about its empty head, but quite another thing to carp on its full heart.
The gathering broke up. Most rode back to their chores and fields. But for some, the new business was just beginning. The four deputies had to find and arrest the fugitive. If O’Kelly stayed to the road, he would be easy to track and easy to overtake. He was known to be a walker and did not suffer the saddle for too long a stretch. On the other hand, he did have a full day’s jump on the pursuit — as much as 30 miles. Chances were he was headed north toward French Prairie and the settlements. He would not have had enough provender for an escape south into the mountains. * * *
The inquest was a step toward law and order. The difference between that gathering and a mob was the difference between cool heads with a procedure and hot heads with a rope. To be sure, naked process was not enough, but without it, fairness had nowhere to root.
Nimrod O’Kelly was a marked man. His life would never again be the same. Nimrod means hunter. But from that moment forward, this hunter would be the hunted. Indeed, some would say he was prey and looked in sympathy upon him. Others would say he was a predator and called him a "menace."
He was seventy-two years old.
ABOUT THE AUTHOR
Ronald B. Lansing is a professor of law at Northwestern School of Law of Lewis & Clark College in Portland. Lansing is also the acclaimed author of "Juggernaut: The Whitman Massacre Trial of 1850," which was released in 1993.For more information on "Nimrod," call WSU Press at (800) 354-7360 or go to http://wsupress. wsu.edu.
© 2006 Ronald B. Lansing