18
arches
autumn
2013
Oregon Territory in 1853 the court had three
justices—back then the high court judges also
were the district court judges, and the territory
was divided into three legal districts. But that
meant they presided over the trials in their own
districts and then they convened annually as the
Territorial Supreme Court to hear appeals from
their own decisions, which did little to stimulate
confidence in the judiciary. So when a fourth
judge was added in 1884 it was thought a great
improvement.
Traveling between jurisdictions was different
for the 1888 justices, too. Today’s court goes on
the road to promote open access to its proceedings.
But the territorial judges traveled out of necessity.
As late as 1883, territorial lawmakers observed as
a practical reality that two-thirds of Washington’s
counties had no judge whatsoever. As territorial
government leaders noted, the immensity of the
land itself led to “an evil” where “civil remedies
[
were] … nought
[
sic],
and crimes [could] …
only be punished by … [a] mode not recognized
by law.”
Such conditions “approximate[d] … a denial
of justice”—a refrain oft-repeated to the purse-
holders back East. It was the federal government,
after all, that created the territorial judicial districts
and appointed the judges, often as political favors.
More than half of Washington’s territorial
judges did not live in the territory when they
were appointed. Consequently a few early judges
were chronically absent from the bench. This was
a point of some contention among the locals,
who wanted a reliable rule of law, but deference
to territorial thought about who should have
the bench was apparently not a primary federal
consideration at the time.
After decades of pleas to the U.S. govern-
ment from the territorial legislature, a fourth
judicial district finally was carved from the
then-existing three. President Chester A. Arthur
appointed George Turner—a Missourian by way
of Alabama—to that newly created position on
Independence Day 1884. Not only did the new
district relieve some of the burdens of travel,
it also corrected the conflict-of-interest defect,
since the fourth position allowed the judge who
had originally decided an appealed case at trial to
rotate out of the appellate proceedings when the
high court convened.
Nevertheless, as legislators noted, traveling
great distances in the 19th century was “irksome
to the judge[s].” This continued to be true even
after the fourth district was added.
I
n 1888, we had a Supreme Court of
the
territory
of Washington, rather
than a Supreme Court of the
state
of Washington.
TheTerritorial Supreme Court issued 44 opinions
that year, often concerning disputes we don’t see
much today: A train hit a buggy; horses were
improperly seized by the sheriff to satisfy a debt;
a railroad employer took issue with barkeepers
who were selling liquor to his employees (the
company preferred its employees sober). Other
cases heard were even more mundane: a squat-
ter on public lands; shipwreck salvage; sawmill
injuries. Colorful or commonplace, our current
state laws developed from that era’s legal stew.
In composition, the modern court differs sub-
stantially from the court of 125 years ago. Take
gender, for example: 2013 is the first year that
the Washington Supreme Court has had both a
female majority and a female chief justice. There
were no women territorial judges—not on the
high court, not in the district courts, not even as
a justice of the peace. Not anywhere.
Another major difference is in the number
of judges. There were four high court justices in
1888
instead of today’s nine. Now, four might
seem a strange number for a tribunal because
it could lead to a deadlocked vote, two against
two. When Washington separated from the
A text of a request from the Washington Territory assembly asking the federal
government to appoint a fourth judge to the Territorial Supreme Court. Since
the Territory Supreme Court justices also were regional judges—one from each
of three districts back then—the three-judge court often found one of its justices
hearing an appeal for a case on which he’d already ruled.