The Beginnings of Courts and Lawyers in Washington
On June 15, 1846, the Oregon Treaty between the United States and the United Kingdom was signed. The treaty brought an end to an Oregon boundary dispute by settling competing American and British claims to the Oregon Country through partition. The area had been jointly occupied by both Britain and the U.S. since the Treaty of 1818. The Oregon Treaty of 1846 established the 49th parallel as the border from the Rocky Mountains to the Pacific, dividing the Oregon Country between the United States and Great Britain.
On August 14, 1848, the Territory of Oregon was formally created by an Act of Congress, known as the Oregon Bill of 1848 or the Act to Establish the Territorial Government of Oregon.
From 1848 until March 2, 1853, the land that would become Washington Territory was included within the Territory of Oregon. During this time, the Oregon Territory had a territorial government with a territorial governor, secretary, and a territorial court system that handled criminal, civil, and probate cases. There were courts and judicial functions in the area that later became Washington Territory, but these were not separate Washington Territorial courts. This system was inherited directly from the provisional government of Oregon (1843–1849) and the U.S. territorial administration after the Oregon Treaty of 1846.
The Oregon Territory’s courts had authority over the entire territory, including the southern and northern settlements that would later form Washington Territory. The territorial court was headed by a territorial judge, supported by justices of the peace and local magistrates in settlements. Cases could be heard in designated territorial court locations, often in larger settlements or town halls. The court handled criminal matters, civil disputes, probate, and other legal issues. The need for law and order was a key driver in maintaining this system in a frontier setting.
On March 2, 1853, Congress established the Washington Territory from the northern portion of the Oregon Territory, and it created along with it a territorial Supreme Court. Edward M. Lander, a lawyer, military officer, and politician, was appointed as the first Chief Justice of the Supreme Court of the Washington Territory. Justice Lander’s appointment marked the first time the Washington Territory had its own chief judicial officer. Justice Lander was born in Salem, Massachusetts, in 1816, studied law at Harvard, and had a career in Indiana legal and political offices before his territorial appointment.
Justice Lander served from 1853 until 1857, when he was succeeded by Obadiah B. McFadden. Justice Lander also played a role in founding the University of Washington alongside Arthur A. Denny, Daniel Bagley, and Charles C. Terry.
The opening page of the first volume of the Washington Territorial Reports was then commenced with the publishing of Nesqually Mill Co. v. Taylor, 1 Wash. Terr. 1 (1854). This first published Washington case is one that could be found in commerce today. In Taylor, the plaintiff provided goods and services to the defendant. When defendant failed to pay, plaintiff filed a collection action which included an attachment of assets. The trial court found in favor of plaintiff. On defendant’s appeal, the court affirmed. The fact that the affidavit to the attachment might have been defective was not sufficient grounds to reverse the judgment.
The education of attorneys in Washington has also been one of developing standards. As discussed in In re Levy, 23 Wn.2d 607, 621, 161 P.2d 651, 657-58 (1945), during territorial days, and until 1909, there were no general education requirements whatever. Nor was an applicant required to spend a great deal of time in the study of law. Until 1895, the only requirement to be a lawyer was eighteen months of study under the direction of a practicing lawyer. In 1895, this period increased to two years. There was no further legislation regarding lawyer requirements for fourteen years. By that time the court could no longer personally examine the many applicants for admission.
The law school had been successfully established at the University of Washington, and the 1909 act (chapter 139, p. 533) provided that graduates of the law school of the University of Washington might be admitted on motion, but all other applicants should be examined by a board of examiners created by the act. The first general education qualification, and the only one that had ever been made by the legislature, appeared in this act. It required candidates for admission to have had a high school education. That was also the requirement for admission to the law school. In 1909, the law school course was only two years in length, so the requirements were four years of high school and two years of law school. Some of the men who graduated from the law school therefore, had only two years of University training, and were admitted on diploma. Yet, at that same time, the standards of legal education had so far advanced in the older and more populous states that men who had had seven years of university training were seeking admission to the bar of this state. Under the 1909 law, they were required to take the bar examinations, nevertheless. This appeared unfair to some.
In Levy, the Court discussed how It rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed. The Court, however, held that this power must be guided by a “sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court, as the rights and dignity of the court itself,” and that admission does not devolve into mere acceptance of law schools that might be regarded as a “diploma mill.” The courts have jealously guarded this power, but this has not stopped the Legislature from establishing certain requirements, and the American Bar Association has also long weighed in. Ultimately, we have arrived at a place where an attorney is now required to graduate from an accredited laws school, must pass a bar exam, and must be accepted by the Washington Bar Association to hold a bar card and practice law in this State. The lawyers are subject to the Washington Rules of Professional Conduct, and their duties are ongoing. There is so much more that could be said about the progress of Washington courts and lawyers, and time and space prohibit such an analysis here, but Washington courts and lawyers have clearly come a long way in the 173 years since Washington became a Territory.
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