Oregon Legal Heritage
Justice Finally Realized
The case of Edward McAllister
By George Painter
One of the important figures in pre-World War I Portland was attorney Edward Stonewall Jackson McAllister (1867-1926). Though he proved himself valuable in both the law and in civic and political leadership, his professional life was marred by a scandal that destroyed his career.
Little is known of McAllister's life prior to his life in Portland. He was born in Laurel, Delaware on May 25, 1867 as the third of four children and was educated in the East. Considering the name he was given, it can be assumed his parents were partisans of the Confederate cause in the Civil War. Married in 1898, his wife died after only a few years of marriage. Later in his life than most people, McAllister decided to become an attorney, and he graduated from the University of Virginia Law School in 1904 at age 37. Immediately thereafter, for unknown reasons, he moved across country to Portland to begin his practice.
The following year, McAllister formed a law partnership with Robert Jarvis Upton, a North Carolina native who had been a year behind McAllister in law school. The McAllister & Upton partnership was one of legal generalization, handling both criminal and civil cases throughout Oregon, as well as Washington and California.
Given his childhood background, it is no surprise that McAllister became active in the Democratic Party, even though Multnomah County at the time had a 4-1 Republican registration advantage. He was a leader of the state party, being among those in delegations meeting Democratic hopefuls in the 1912 presidential election coming to court Oregon delegates.
McAllister also was a friend of William U'Ren (1859-1949), the father of the Oregon System, and radical attorney and poet C.E.S. Wood (1852-1944). They were leaders in the Oregon single tax movement and succeeded in convincing voters to adopt a county taxation measure in the 1910 election that they hoped eventually would lead to a statewide single tax policy. However, the measure proved unpopular, and the county taxation measure was repealed by a public vote in 1912.
McAllister, U'Ren and Wood also together drafted a new charter for the city of Portland, the current city commission form of government that voters adopted in 1913.
The busy attorney also was the plaintiff in a major consumer rights case decided by the Oregon Supreme Court in 1912 concerning the obligation to stockholders by successor companies following a merger, McAllister v. American Hospital Association, 62 Or. 530.
In the spring of 1912, McAllister was appointed defense attorney for Henry E. 'Jack' Roberts, a long-time criminal arrested for killing two men and wounding another in a robbery attempt (two others with them were not injured). The case proved sensational because the victims were from prominent families and also happened to be homosexual. The press treaded lightly over this latter fact, given the prominence of the families.
As if this were not enough to keep him busy, McAllister also announced that he was considering a run for a judgeship in the 1912 election. He decided against the race, however.
Though the Jack Roberts murder trial cracked open a giant closet door around Portland concerning a community of men who loved one another, another event later in 1912 pulled that door wide open.
In November, following two unrelated and seemingly purely coincidental incidents that gave Portland police a list of names of homosexual men in the city, the so-called 'Vice Clique' Scandal broke wide open. (The name 'Vice Clique' was given to this group by the contemporary local newspapers.) One incident was a teenager arrested for shoplifting who offered the defense that he had been 'corrupted' by a number of men in town. The second was a happenstance discovery by a private investigator who learned that a resident of the YMCA was well known there for sexual relations with other men. When all was said and done, 68 men were named as involved, one of them Horace Tabb, one of the uninjured victims in the Jack Roberts shooting earlier in the year, and another being attorney Edward McAllister himself. All of the men involved were charged with private, consensual sexual relations.
McAllister was out of town on legal business in the Coos Bay area when the first newspaper reports of the scandal and arrests were printed. McAllister was one of the most wanted names. He was arrested and escorted back to Portland by the Medford chief of police.
McAllister was returned to a Portland abuzz with the biggest sex scandal ever to hit the city. An investigative committee was at work to determine if the YMCA, where several arrestees lived, was involved in promotion of sexual activity therein. Several men had fled Portland, either after being named in the newspapers or in anticipation of being so named. Some were allowed to leave, but others were returned by police detectives pulled from their regular duties and specially assigned to find them. The grand jury began indicting arrestees. One YMCA resident, after being taken from work for questioning, was fired from his job of 27 years, and he attempted suicide.
In December, a physician and a bookkeeper each were tried and convicted. In January 1913, three other arrested men pleaded guilty. In February, McAllister's turn came. Given his prominence, he had no difficulty assembling a defense team of four other prominent lawyers. Presiding over the trial was Judge John Kavanaugh (1871-1940), a mild-mannered but staunchly conservative jurist.
As with the other arrestees who went to trial, McAllister was indicted for sexual relations with one other man, but faced a string of men on the witness stand testifying to relations they had with him as well, or as to solicitations by him. Among the information these men gave about McAllister was that he was well known by the nickname Mother McAllister because of his importuning men on the street, and that he cruised Lownsdale Square (ironically, right across the street from the Multnomah County Courthouse where he practiced law and now faced a jury as a defendant). Also as in other vice clique cases that went to trial, many of the witnesses against McAllister faced indictments of their own for sexual relations with still others and thus were forced to give testimony incriminating themselves. The chief witness against McAllister, Roy Kadel (1882-1934), got nothing out of his cooperation with authorities. He was fired from his job as a mailman by superintendent John Merritt Jones (1871-1949), who later became Portland's postmaster.
Three respected Portland businessmen and friends of his, a tailor, a restauranteur and a railroad official, each lent their name to McAllister's claim that pretrial prejudice due to all the headlines made a fair trial impossible. Prior to the jury's retirement in his case, McAllister made what newspapers called 'an eloquent plea' on his behalf to the jury. Though no record of the plea is known to have survived, it obviously was quite powerful. The jury spent 10 hours deliberating before returning a verdict of guilty with a curious recommendation for 'leniency.' Judge Kavanaugh thought otherwise, and gave McAllister the maximum sentence of one to five years in the Oregon penitentiary. He, like physician Harry Start and bookkeeper Edward Wedemeyer, convicted before him, filed a notice of appeal with the Oregon Supreme Court.
Because of their earlier convictions, the Start and Wedemeyer appeals were heard in an earlier term of the high court. McAllister, his law partnership ended by his partner, could do nothing but wait for the court's decision. In May, a precedent was created in Oregon when the court handed down State v. Start, 132 P. 512. Criminal defendants could not have testimony of witnesses to acts other than those faced by a defendant in an indictment admitted in a trial, owing to their likelihood to prejudice the jury. Why McAllister wasn't released as a result of the Start decision isn't clear, except that the decision was by only a 3-2 vote and the Oregon legislature just increased the Court's membership to seven justices. Two new members of the Court would be appointed and, if they joined the dissenters in Start, would create a new majority to overrule the decision in the fall.
Fortunately for McAllister, the two new justices split their votes, giving him a 4-3 victory reaffirming the Start rule. (One of the two new justices, and one of the three voting against him, was future U.S. Senator Charles McNary. McNary wrote the emotion-laden dissent in McAllister's case that revealed a deeply seated personal discomfort with same-sex eroticism).
The McAllister decision was handed down on Nov. 20, 1913. Just five days later, as if having been preparing for exactly this eventuality, a motion was made by the Multnomah Bar Association to expel McAllister from membership, even though no disciplinary complaint had been filed against him with the Oregon Supreme Court. Two months later, the minutes of the association reveal that the expulsion motion carried, although neither any discussion nor recorded vote is shown.
Courageously, McAllister, in spite of his notoriety, continued to attempt to reestablish a law partnership and supported himself in the meantime as a clerk. Finally acknowledging that no one would practice law with him, McAllister left Portland in 1915 and settled in the Douglas County town of Myrtle Creek as a farmer. In 1921, possibly strapped for money, McAllister successfully petitioned the Oregon Supreme Court to direct the state to reimburse him for the costs of his defense. He died from a stroke in Myrtle Creek on March 20, 1926 at age 58 and is buried there.
McAllister apparently was quite respected in Myrtle Creek. Yet, his love of his own sex and involvement in the Portland scandal must have been known in his adopted town. His obituary in the Roseburg News-Review mentioned his local prominence without a hint of what brought down his local career. However, his Myrtle Creek Mail obituary added a curious footnote that his life 'had known tragedy, and persecution, and disappointment.'
On June 17, 2000, the Multnomah Bar Association's board, following the recommendation of its Committee on Equality, voted unanimously to reinstate McAllister, concluding that his expulsion was solely for having been gay. He was the first expelled MBA member to be reinstated in the group's 94-year history. +
ABOUT THE AUTHOR
George Painter is a legal assistant and librarian at Kolisch, Hartwell, Dickinson, McCormack and Heuser in Portland.