iifi5#:ii£Ht mMpoRpft. C s , Uttfttta, JJem ffork FROM THE BENNO LOEWY LIBRARY COLLECTED BY BENNO LOEWY 1854-1919 BEQUEATHED TO CORNELL UNIVERSITY Cornell University Library KF 354.C3S56 1888 Bench and bar in California :history, an 3 1924 018 791 883 K Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018791883 Bench and Bar -(IN")- CALIFORNIA. HISTORY, ANECDOTES, REMINISCENCES. BY OSCAR T. SHUCK, ( ' ' Scintilla Juris ' ' ) OF THE SAN FRANCISCO BAR. SAN FRANCISCO, CAL. The Occident Printing House, 429 Montgomery Street, 1888. M fn AS^^i4-tf4 Entered according to Act of Congress, in the year 1888, By OSCAR T. SHUCK In the Office of the Librarian of Congress, at Washington. Y'l |{;V, : 3V)HU ■YV./Uitii.' 1 . TO THB HON. S. C. HASTINGS, Whom I have known the longest of them all — Chief Justice of our Supreme Court in 1850, and still exhibiting a sturdy manhood in 1887 — I would regardfully inscribe this volume: counting it a happy circumstance that I may associate the only Chronicle of our Bench and Bar with the name of the honored founder of our only College of Iyaw. The; Author. PREFACE. The omission of this page might be noticed, as being- an innovation. I publish my book because the story of the California Bar has never been told. In a free State, the profession of the law is the highway of ambition — a broad avenue, whence open fields of splendid possibility. Bar leaders walk before the universal eye. In older lands, a copious literature has made them its subject. Here, too, are masters of the Forum, to whom, with others gone before, mans'' notable triumphs are to be credited. The meteoric McDougall, the eccentric I^ockwood, the eloquent Hawks, the brilliant Byrne ; Baker with a voice like Israfel ; Randolph and Baldwin, noble remembrancers of the land and fame of Marshall ; Felton and Murray, cut off in their manly pride and prime ; — all have passed to their ultimate appeal. But their peers survive, and it is given me to tell the stirring story of the living and the dead. CONTENTS. vii" TABLE OF CONTENTS. CHAPTER I. Edward D. Baker — Orator, Lawyer and Statesman — A Soldier in Three Wars — Great Criminal Trials— Baldwin's Witty Thrusts at the " Old Gray Eagle"— Gov. Low's Wager — Verdenal's Jest — Bert Harte's Enthusiasm — The Political Campaign of 1859 — Brief and Brilliant Period in the Federal Senate — Death on the Battle Field — Celebrated Speeches — References to A. C. Monson, George Cadwalader, Edward Stanly, Jacob R. Snyder and Thos. Starr King. . 13-20. CHAPTER II. Hall McAllister — The Veteran of the Bar — Scion of a Line of Lawyers — A Name Scattered Through Seventy Volumes of Reports — Personal Description — A Practice of Widest Range — Extraordinary Capacity for Work — Manner of Trying Cases — A Contrast with Edmund Randolph — Anecdotes — Judge Lake's Estimate of His "Muse" — Mr. Papy's Pleasantry. . . 21-27 CHAPTER HI. John B. Felton — College Days — Early Partnership with Edward J. Pringle — Celebrated Cases — The Great Limantour Conspiracy — The Local Option Law — " Mortgage Tax" — The "City Slip" History — Felton's Enormous Fees — His Learning, Genial Nature and Sparkling Conversation — The Bulkhead Bill — Allusions to Professor C. C. Felton, Judge Lorenzo Sawyer, Judge T. W. Free- Ion, Levi Parsons, Gov. John G. Downey, and others. . . . 28-37 CHAPTER IV. Joseph P. Hoge — Sage of his Party and Nestor of the Bar — His Record in Congress — A Colleague of Stephen A. Douglas and E. D. Baker— The Oregon Question — The Wilmot Proviso — The Galena Lead Mines — At the Bar in Three States— Humorous Notes— A Long Prosperity and a Green Old Age. 38-44 CHAPTER V. Samuel M. Wilson— Association with Joseph P. Hoge in Illinois and California A Broad Practice and Princely Revenue— The Broderick Will Case— The Nitro-Glycerine Explosion, 1866— The Mining Debris Litigation— A Striking Instance of the Law's Delay— The Conflict Between State and United States Land Patents— A Seat on the Supreme Bench Declined— Meeting the Giants of the Eastern Bar. ........ 45-54- Vlll CONTENTS. CHAPTER VI. Henry H. Byrne — A Picture of the Man and the Advocate — A Popular Idol But Distrustful of the Poor — Four Terms as District Attorney of San Francisco — Bouts with Baker and the Elder Foote — The Unfortunate Marriage with Matilda Heron — The Contest of the Actress for his Estate — Her Pathetic Story Told in her Own Words — Explanation of the Last Will — Amusing Anecdotes and Reminiscences. ...... 55-65 CHAPTER VII. Lorenzo Sawyer — With McDougall in Illinois — In the Eldorado Mines in 1850 — The Early Bar of Nevada County — A Remarkable Murder Case — Honors in San Francisco — A Long Tenure on the Bench — Judicial View of the Chinese Question — The Authorship of the Sole Trader Act — The Principles of Masonry — First Meeting with the Eccentric Lockwood — References to A. A. Sargent, Judge J. B. Crockett, Jno. R. McConnell, E. W. Roberts, E. F. W. Ellis, Stanton Buckner, C. H. S. Williams, Roderick N. Morrison, Frank M. Pixley and Tiburcio Parrott. ........ 66-78 CHAPTER VIII. Solomon Heydenfeldt-- An Oracle of Quiet Counsel— His Only Criminal Case — Senatorial Contest of 1851 — On the Supreme Bench and Resignation There- from — Other Early Supreme Judges, Hugh C. Murray, Alexander Wells, Alexander Anderson and the Patriarch, Peter H. Burnett — Reminiscences and Anecdotes of John C. Fremont, T. Butler King, John B. Weller, Wilson Flint, Henry S. Foote, Tod Robinson, Newton Booth, Solomon A.Sharp, E. D. Wheeler and Edward Norton — The Roll of Governors of California. . 79^1 CHAPTER IX. Niles Searls — A Career to Animate the Young and Poor — A Start at the Bottom of the Ladder — Unloading a River Steamboat in '49 — "Waiting" for an Opportunity at the Bar — On the Bench of Nevada County — Settling the Law of Mining Claims and Water Rights— A Succession of Honors — Chief Justice of the Supreme Court — Personal Notes and Pleasantries. . . . 92-96 CHAPTER X. A. P. Catlin, of Sacramento — An Histqrical Chapter — The Squatter Riots of 1850 — Broderick's Struggle for the United States Senate — The Peck-Palmer Bribery Trial — Memorable Meeting Between E. D. Baker and C. H. S.Williams —Locating the State Capital — Attempts to extend the San Francisco City Front — The First Vigilance Committee of the Bay City — Trial of "The Hounds" — Impeachment of State Treasurer Bates — Long Litigation Over the Town of Folsom — Allusions to Prominent Men of Early Times. . . 97-112 CONTENTS. IX CHAPTER XI. John T. Doyle — Some Interesting Cases in New York and California — The Suit of Gov. Price, of New Jersey, against Squire P. Dewey and Gen. E. D. Keyes — The Convivial Wit, Sam. Ward— History of the " Pious Fund " of the Catholic Church — A Notable Argument — Peter Donahue Brought to Terms — R. J. Vandewater Taken At His Word— A Judicious Friend of Young Men— The Story of Col. C. P. Eagan, United States Army— Some Interesting Personal Points. ... . 112- CHAPTER XII. Alexander Campbell — A Reputation Early Won at the Brooklyn Bar — District Attorney of Kings County, New York — Another California Pioneer — Peculiar Controversy Over the Office of County Judge in San Francisco — A Dejected Grand Jury — References to Some Celebrated Cases — His Address in the Fair Murder Trial — Personal and Professional Traits. . . 123-129 CHAPTER XIII. A Chapter of Pleasantries — Wit and Humor of Bench and Bar — Sallies of Judge E. D. Wheeler— Judge Stanly's Orderto " Burn That Petition "—An Elaborate Conundrum — Characteristic Conduct of a Jury of Lawyers — A Constable With More Pomp Than Discretion — Anecdotes and Recollections of Ogden Hoff- man, A. P. Van Duzer, Solomon A. Sharp, J. B. Townsend, M. C. Blake, William M. Zabriskie, C. T. Ryland, Joshua W. Redman, William Daniels, J. B. Murdock, and others. . . . . 130-140 CONTENTS. TABLE OF CONTENTS. CHAPTER XIV. Stephen J. Field— A Wonderful Life Story— Vicissitudes and Trials and "Hairbreadth 'Scapes" — Collisions with the Bench — Expulsion from the Bar, and Reinstatement — Extraordinary Scenes in Court and Legislature — Duel with Judge Barbour — Relations with David C. Broderick — Legislative and Judicial Record — Amusing Incidents and Anecdotes, and a Capital Sensation — References to Leading Men of the Past and Present, with a Glance at the Early Marysville Bar. . ... 141-164 CHAPTER XV. Henry E. High ton — A Strong Original Character — Scion of a Line Distinguished for Mental Activity — Pluck and Patience in Early Years — A Life full of Achievement — Some of his Great Causes Stated — The Dennis Kearney Agitation' — A Defense Turned into a Prosecution— The Impeachment of Mayor Kalloch — The Dawson Injunction Case of "Church and State" — Public Service on the Bulkhead Question — Commanding Views on Social and Political Problems — A Chapter of Many Useful Lessons. 165-190 CHAPTER XVI. The Shafters, Par Nobile Fratrum — Bar Leaders Who Led in the East and in the West — Oscar L. Shaffer's Advice to Law Students — On the Supreme Bench of California — His Genial Nature and Thoughtful Religious Views — Henry E. Highton's Eulogy — Judge McKinstry's Estimate— James McMillan Shaffer — A Distinguished Name in Law, Politics and Legislation — An Example of Devotion to Learning, Agriculture and Industrial Development — The Constitutional Convention of 1878— A Pen Portrait by Rev. Dr. Bonte — Notes ofTrenor W. Park, C. H. S. Williams, Edward Stanly, and the Great Law Firm of Halleck, Peachy and Billings. . . . 191-208 CHAPTER XVII. James A. Waymire and M. A. Wheaton, of San Francisco, and John K. Alexander, of Monterey— Waymire's Early Life in Oregon— On the "Stump" at Nineteen — His Military Record — Courage and Coolness in Encounter — On the Bench and at the Bar in San Francisco — Mr. Wheaton's Genius for Mechanics — A Leading Name in Patent Practice — The Great Patent Case of N. W. Spaulding vs. The American Saw Company — The Case of Levi Strauss & Co., vs. King & Co., in New York City— Judge Alexander's Popularity— A Gold Miner in Calaveras — In the Schools of Sacramento — District Attorney and Superior Judge— A Compliment from the Supreme Court. . 209-239 xn CONTENTS. CHAPTER XVIII. S. C. Hastings, First Chief Justice of the Supreme Court— Founder of Our Only College of Law— His Early Career in Older States— Chief Justice of Iowa, and Member of Congress— A California Pioneer— Attorney-General in 1S51— His Judicial Opinions— Beginning of His Great Wealth— A Philosopher With a Midas Touch — Perennial Humor — A Practical Joke on James B Haggin and Lloyd Tevis— How the Latter Got His Start— Interesting Facts About Haggin and Tevis— A Story on Hastings by the Elder Baldwin— Original and Amusing Views Touching our Last War — References to William H. Seward, Jefferson Davis, Lewis Sanders, Jr., William M. Lent, Dr. J. D. Whitney and others. . .... 240-253 CHAPTER XIX. Rufus A. Lockwood and Edmund Randolph — Lockwood's Strange Career and Tragic End — Changes His Name — Rash Enlistment as a Common Soldier — A Longshoreman in San Francisco — A Lawyer's Janitor at Ten Dollars Per Day — Leading the San Francisco Bar — Sudden Departure for Australia — Herding Sheep as a Penance for Sins — Return to this Country — Before the United States Supreme Court — A Picture by Hon. Newton Booth — Edmund Randolph's Brilliant Record — A Man of Splendid Visions — The Great Case of the New Almaden Quicksilver Mine — Caustic Treatment of the Millionaire Lawyer, Frederick Billings — Connection with Walker's Scheme of Empire. 254-269 CHAPTER XX. Joseph G. Baldwin — Something of the Delightful Author of "Party Leaders" and " Flush Times in Alabama " — ;Career as Lawyer and Judge — A Great Wit and Brilliant Man of Letters — Humor Overflowing from the Bench — Con- trasted with Stephen J. Field — A Bout With Tod Robinson — Skidmore's Equitable Defense — Anecdotes of Francis J. Dunn — References to S. S. Prentiss, Chapman Johnson, and Other Great Men of Older Lands, and to Judge Alexander W. Baldwin, of Nevada. ..... 270-280 CHAPTER XXI. David S. Terry of Stockton — A Life Cast Amid Stirring Scenes — In the Texan Army Under Sam Houston — At Monterey Under Taylor — Chief Justice of the Supreme Court — Arrest and Imprisonment by the Great Vigilance Com- mittee — The Duel- With United States Senator, David C. Broderick — Graphic Narrative of the Historic Encounter By an Eye Witness — In the Confederate Army — A Command Under Maximilian in Mexico Declined — References to D. W. Perley, J. Neely Johnson, Henry Edgerton, Volney E. Howard, R. P. Hammond, Samuel H. Brooks, Calhoun Benham, Thomas Hayes, Joseph C. McKibben, David D. Colton and Leonidas Haskell. . . . 281-291 CHAPTER XXII. Elisha W. McKinstry, D. M. Delmas and Others— Judge McKinstry's Long Period on the Supreme Bench — An Estimate of Him as a Judge, by Henry H. Reid— The Splendid Career of Mr. Delmas— Notices of William J. Shaw, Henry H. Reid, Lansing B. Mizner, George R. B. Hayes, William M. Pierson, T. C. Van Ness, Judge James V. Coffey, Joseph W. Winans, Hon. William M. Stewart, T. E. K. Cormac, August Comte, Joseph M. Nougues, John Garber, Harry I, Thornton, Thomas B. Bishop, John C. Hall, Arthur Rodgers and Eugene N. Deuprey— A Story of Horace W. Carpentier. . . 292-303 CHAPTER I. Edward D. Baker— Orator, Lawyer and Statesman— A Soldier in Three Wars— Great Criminal Trials— Baldwin's Witty Thrusts at the "Old Gray Eagle"— Gov. Low's Wager— Verdenal's Jest— Bret Harte's Enthusiasm— The Political Campaign of 1859— Brief and Brilliant Period in the Federal Senate— Death on the Battle Field- Celebrated Speeches— References to A. C. Monson, George Cadwalader, Edward Stanly, Jacob K. Snyder and Thos. Starr King. "Baker, you know everything — except law." It was the elder Baldwin who spoke, a master mind in legal science. It was in the long ago, and he was rallying no less a man than Edward D. Baker, even then famed at the bar and in arms. Baker had held a brilliant place at the bar of Illinois, among those to whom he afterwards pointed (with a modesty that excluded himself) as ' 'the pride and boast of the Mississippi Valley." He had won distinction in Congress, and as a soldier in the war with Mexico. Now, early in the ' 'Fifties, ' ' having established himself in law practice in San Francisco he had gone to Sacramento, the capitol, on a professional visit. It was his first appearance in the interior of the State. While happiest in criminal cases, he was now enlisted in a civil trial. The plaintiff was the well-known lawyer, Joseph W. Winans, suing Hardenberg & Henarie, of the Orleans Hotel, to recover $3,000 on a promissory note given for legal services. The defense was made by only one of the partners, who said the note was executed by the other after the partnership was dissolved. But the other partner testified to the contrary. ■ Baker was for the defense. He made a splendid effort to uphold a lost cause. In spite of the evidence he at least upheld his own fame for ingenuity and eloquence. But the plaintiff obtained a verdict, and the judgment thereon was affirmed on appeal. The trial below was before Hon. A. C. Monson and a jury. George Cadwalader, who had just come to the bar, was the lawyer who had the honor of the triumph. It was on this occasion that Joseph G. Baldwin, who had witnessed Baker's felicitous performance, accosted him with the opening words of this chapter. And the witty Southron followed them with a specimen of that infectious laughter that was his alone. There was no political campaign pending just then, but the Sacramentans were bound to hear Baker outside the court room. They called him out on the lecture platform. He gave them "Books." He was full of his theme, and Baldwin was perhaps the most appreciative and most charmed of all his auditors. But the next day the Virginian had another sally for the lecturer 14 BENCH AND BAK IN CALIFORNIA. on "Books." "Baker," he said slowly, "you know everything about books — except law books. ' ' The "Old Gray Eagle," as we fondly called him, soared close to the sun. His soul fed on poetry and fame, he was brilliant in the nation's eye, and "the path of glory led him to the grave." He was not very long at this bar, but his career here was cast in a crucial and eventful period. His triumphs and defeats were notable, and his figure looms up as the most striking in our legal annals. He was born in London, England, in 1811. When five years old his parents came to the United States, bringing him with them. They came to this country, loving its institutions. They were teachers, educators, and making their home in Philadelphia when the echoes of the old bell of freedom yet lingered on the air, they opened a school and taught the youth of that city until the father's death, ten years later. The mother lived to a great- age, surviving her distinguished son. When in the fullness of time, the latter became a United States Senator,', his first letter bearing the Senatorial frank was addressed to the aged mother. The Rev. Thomas H. Pearne, of Portland, Oregon, is authority for the state- ment that, on the way to the Post Office with the letter in hand, and convers- ing with a friend, the Senator remarked with fond pride that his mother, then, more than eighty years old, was a woman of strong, cultivated mind; that she had often taken down his speeches in short-hand, which she wrote with ele- gance and rapidity; that she was a beautiful writer and still retained in vigor her mental faculties. Tears were in his eyes as he recounted her virtues and excellences. At seventeen Baker went to Illinois, settling at Carrollton. He studied law and elocution. When he was twenty-one he entered the Black Hawk war, obtaining a Major's commission. He distinguished himself in that war. In 1845-6 he represented the Springfield district in Congress; and the old Globe will show that he was then gifted with that clearness of vision, and that charm of speech, which later so often fascinated the people of the New West. He was then the first orator of Illinois. He was a Whig, but, unlike most of the Northern Whigs, he favored the Mexican war. He gave up his seat in Congress to fight under Taylor. He was at Cerro Gordo, at the head of the Fourth Illinois Regiment, which regiment was raised by him. Without following him through the war, let it be said that at its close his State presented him with a sword. In 1849 he went to Congress again — a Whig from a Democratic district. Governor Stanly, in his oration at Baker's funeral, said: "He had, if not all the ambition, the courage and genius of Julius Caesar." Governor Stanly might have said he had, too, the ambition of Caesar. Baker was among the most ambitious of men. He loved fame. His soul was ever athirst for glory. BENCH AND BAR IN CALIFORNIA. 1 5 I am tempted to believe that he favored the Mexican war, in opposition to his Whig friends, chiefly because it was war, and afforded him an opportunity to slake the burning thirst of his heart. In 1 85 1 we find Baker in a strange role — superintendent of construction of the Panama Railroad. He had a heavy force of men under him, and managed them with ability. In June, 1852, Baker arrived in San Francisco, and until he departed for Oregon, eight years later, he practiced law here with distinguished brilliancy and success. In 1859 he ran for Congress on the Republican ticket. That was, without exception, the most interesting year in the political history of California. It was the year of Broderick's death — the year when the great Democratic party broke in two. Burch and Scott were the regular Buchanan administration candidates for Congress. The anti-L,ecompton or Douglas candidates were Joseph C. McKibben of Sierra, and Judge Booker, of Stock- ton. The Republican candidates were Colonel Baker and P. H. Sibley. California then was strongly Democratic; By a tacit understanding between the Republicans and Douglas Democrats those two elements coalesced on can- didates for Congress, and cast their united vote for Baker and McKibben. It was of no avail. Burch and Scott were elected by a heavy majority. But Baker made a magnificent canvass. From San Diego to Yreka his eloquent tongue was heard, and never before or since have our hills and plains echoed so marvelous a voice. The Sacramento Union employed short-hand reporters to accompany the orator, and to report his speeches verbatim. It was in that campaign that Baker made his great speech at Forest Hill, Placer County,, known as his "Forest Hill" speech. "I am here speaking in the mountains," were his opening words, ''al- ways in all lands favorable to the great idea of real liberty; always an inspira- tion to its defenders; always a fortress for its warriors." Henry Fdgerton, himself an orator worthy of the name, who was with Baker at Forest Hill, de- clared he never heard so grand a speech. It may be found in full in the Sac- ramento Union of August 23, 1859. It was in this campaign that I, a boyish worshiper of this magnetic orator, had the pleasure of grasping^his warm hand for the first time ? It was on the very day of election, and at the Third ward polls in Sacramento. The ' 'Old Gray Eagle' ' had closed the fight by a magnificent speech in Sacramento the night before and was about to take the two o'clock p. m. boat for San Francisco, but visited in person the various polling places. Just as he was- leaving the Third ward precinct he caught my eye and saw the tickets in my grasp. lifting my hand with his he read the tickets which I held, and see- ing thereon his own name, said: "The young and the old work together to- day." Colonel Baker lost this fight. As he afterwards publicly declared, his 1 6 BENCH AND BAR IN CALIFORNIA. 'hopes and his heart were crushed. But in less than one year from the time of that Waterloo, he was a Senator of the United States ! Oregon was his constituency. On the eve of his departure for Oregon, to capture a State of which he was not a resident, Governor Low bet him a suit of clothes that he would not succeed in getting to the United States Senate. When he came back triumphant, Governor Low was in the van of the great throng that wel- comed him. "I'll take that suit of clothes, Low," was the first thing Baker said. He got the suit, but some people say that if he had lost the wager* his memory would not have proved so reliable. While attention is turned to Oregon, I may tell this also, which I get from Mr. J. M. Verdenal. The latter, by the way, declares that Baker was the greatest orator he ever heard, and he has listened to Daniel S. Dickinson, Judah P. Benjamin, Robert G. Ingersoll, and other famous speakers. Mr. Verdenal' s brother, D. F., now a leading newspaper correspondent in New York City, and who practiced law for a few years in San Francisco, pursued his legal studies in Baker's office. Being in Washington shortly after his old friend had become a member of the Federal Senate, he took occasion to pay his respects to "Baker of Oregon" in the senate chamber. "Young man," said the senator, grandly, "I hope that you, some day, may stand on this floor as a senator from a sovereign State. " "Thank you," responded Verdenal, "I hope I will not have to emigrate to Oregon in order to get here. ' ' Baker was very engaging on the lecture platform. Few, if any, of his efforts in that line, were reported with any attempt at fullness. Indeed, be- fore 1859, short-hand was a very rare accomplishment in California. Notable among his lectures, besides that on ' 'Books, ' ' were ' 'The Sea, ' ' ' 'The Plurality of Worlds" and "Socrates." These he treated with a glowing imagination, closing the last named with a noble tribute to Truth. At the Burns' Cen : tennial, 1859, he was very happy. Another fine effort was his oration at the dedication of Lone Mountain Cemetery (where his body rests), May 30, 1854. Starr King, in his touching address, six years later over Baker's open grave, made this allusion: "We have borne him now to the home of the dead, to the cemetery which, after fit 1 services of prayer, he devoted in a tender and thrilling speech, to its hallowed purposes. ' ' Then Mr. King gave these lines from it: ' 'Within these grounds public reverence and gratitude shall build the tombs of warriors and statesmen who have given all their lives and their best thoughts to their- country." Baker's most deliberate, thoughtful and polished production, was his ora- tion at Broderick's funeral, September 18, 1859. It contains his stirring pro- test against dueling. Never was man so eloquently mourned as Broderick. Baker worshipped the beautiful as ardently as Poe — the beautiful in art, in literature, in nature. His soul was full of poetry. One day, during the recess of a murder trial, in which he was about to speak for the prisoner, his BENCH AND BAR IN CALIFORNIA. 1 7 eye fell on one of those beautiful little fugitive poems that sometimes come and go, no one knows where. After reading it repeatedly and examining it thoughtfully, he showed it to a brother lawyer (the late Lewis Aldrich) saying: "Isn't that beautiful ? I have been thinking how could I weave it into my speech this afternoon. I don't know where I can bring it in, but I'll find a place for it, if I hang my man." Baker was counsel for the defence in the Snyder embezzlement case. Major J. R. Snyder came to California from Pennsylvania, his native State, several years before the Argonauts. He was in the first Constitutional Convention (1849) from the Sacramento district and in 1852-53 was a State Senator from San Francisco. He died on his Sonoma farm about 1877, leaving a valuable estate, including business property in San Francisco. While he was superintendent of the San Francisco Mint, he was tried in the Court of Sessions (T. W. Freelon, Presiding Judge), A. D. 1853, on a charge of embezzlement — it being asserted that there was a continuous shrinkage in the precious metals brought to the Mint. The defense claimed that the missing gold had gone, not where the woodbine twineth, not exactly up the spout, but — up the chimney, and had been wafted off in those golden clouds that are wont to circle above all mints, where they "Become enthroned in upper air And turn to sunbright glories there." During the progress of the trial, the Mint whistle blew one day at twelve o'clock noon. "What is that ?" said one lawyer to another. "It is Uncle Sam whistling for his money," was the reply. Judge Freelon remarked to me that Baker's argument on that trial was the finest he ever heard him deliver. Baker had a faculty of understanding mechanical principles. Major Snyder did not; nor did more than a few of the' witnesses. Baker must have spent several weeks in studying in detail the chemical operations of the Mint, for on the trial he showed that he knew more on this subject than anybody else. In his argument he turned his knowledge to good account, and also displayed his best powers of oratory and illustration. He acquitted his client, who was generally believed to be an honest man, but an incompetent manager. Judge Freelon also heard Baker in the Cora case; and thought while his speech in that case was more brilliant and eloquent and impassioned, yet, as a forensic effort, an argumentative display, a union of fact, argument and expression, the speech in behalf of Major Snyder was more creditable to him as a lawyer and advocate. Mention of the Cora case recalls the fact that Baker suffered a severe penalty for his brilliant defense in that celebrated trial. For a time he was socially ostracized. Society indicted him. It would never have visited such censure upon an advocate of ordinary powers. Cora had killed General Richardson, United States 1 8 BENCH AND BAR IN CALIFORNIA. Marshal, and his trial for the crime commenced January 8, 1856. He employed Colonel Baker to defend him, but public opinion insisted that the Colonel should leave the accused to his fate. He did his duty, and, in ' consequence, such was the inflamed state of the public mind, the eloquent old man suddenly found himself like a stranger in a strange land. Day after day the newspapers poured out their wrath upon his head. He stood his. ground and "hung the jury." Before Cora could be put on trial the second time the Vigilance Committee hanged him. I will not say anything of that great popular uprising; I only touch the Cora trial because it concerns Baker's fame. It is hardly necessary, now, to argue that Baker had a clear right to defend the prisoner. The public opinion, which would tell a lawyer whom he may and whom he may not defend, would, if permitted, dictate the- judgments of courts of justice. But Baker may be quoted in his own vindication. In his defense of Cora before the jury he took occasion to say: "The legal profession is, above all others, fearless of public opinion, candid and sympathetic. It has ever stood up against the tyranny of monarchs on the one hand, and the tyranny of public opinion on the other. And if, as the humblest among, them, it becomes me to instance myself, I may say it with a bold heart — and I do say it with a bold heart— that there is not in all this world a wretch so humble, so guilty, so despairing, so torn with avenging furies, so pursued by the vengeance of the law, so hunted to cities of . refuge, so fearful of life, so afraid of death — there is no wretch so deeply steeped in all the agonies of vice and misery and crime — that I would not have a heart to listen to his cry, and find a tongue to speak in his defense, though around his head all the fury of public opinion should gather, and rage, and roar, and roll, as the ocean rolls around the rock. And if I ever forget, if I ever deny, that highest duty of my profession, may God palsy this arm and hush this voice forever." It is the judgment of many that Baker never stood forth as the orator' so irresistibly as in the old American Theatre (where now stands the Halleck Block) on the night of October 27, i860. Perhaps on that occasion he excited his audience to a pitch of enthusiasm and delight beyond all his other triumphs. One year before, he had left the State— defeated in a tremendous struggle, but hopeful and free of soul. He was now on his way from Oregon to Washington to take his seat as a Senator of the United States. He seemed inspired. The speech was fully reported and widely distributed. Delivered without notes, it was full of gems that will sparkle forever, as this : "Here, then, long years ago, I took my stand by freedom, and where, in youth, my feet were planted, there my manhood and age ' shall march. And, for one, lam not ashamed of freedom. I know her power; I rejoice in her majesty; I walk beneath her banner; I glory in her strength. I have seen her struck down on a hundred chosen fields of battle. I have seen her friends fly from her. I have seen her foes gather around her. I have seen them bind her to the stake. I have seen them give her ashes to the winds regathering them again that they might scatter them yet more widely. But when they turned to exult I have seen her again meet them, face to face, clad in complete steel and brandishing in her strong right hand a flaming sword, red with insufferable light !"' BENCH AND BAR IN CALIFORNIA. 1 9 The natural grace, the manly animation of the speaker, the way he suited the action to the word, were peculiarly his own and full of fascination. He appeared to brandish in his own "strong right hand, " the "flaming sword red with insufferable light ;" and his audience, tossed on the mountain waves of his eloquence, seemed to see him standing, unconquerable, the especial champion of Freedom, who, no more to be bound to the stake, was to exult in majesty and triumph forever. The daily papers, reporting the occasion, told of one individual in the audience, who, in the exuberance of his enthu- siasm, leaped on the stage, and cheered as he waved the flag of freedom before the throng. This was no other than Bret Harte, then ' 'a youth to for- tune and to fame unknown. ' ' During his short term in the Senate he delivered a few great speeches, in one of which occurred his oft-quoted tribute to the press. He also quickly won a high reputation for skill in debate, while his reply to Benjamin, in January, 1861, evidenced great logical power as well as majesty of expression. It surprised the country when Baker left the Senate for the "tented field." ' It was thought an unnecessary sacrifice. But Baker was under an uncontrollable impulse. He once told Samuel B. Bell that eloquence was not his forte. Bell, in astonishment, said: "If you can beat yourself as an orator, in another direction, you are certainly an extraordinary man. ' ' ' 'Well, think what you may, ' ' replied Baker, ' ' my real forte is my power to com- mand, rule and lead men. I feel that I can lead men anywhere." He raised a regiment, and went into this his third warfare as a Colonel. His career in the field was even shorter than his time in the Senate. He fell in his first fight, on the 21st day of October, 1861 — gallantly, gloriously, and was commissioned Major-General after his death. Brilliant, restless and checkered life! These lines close a pathetic little poem, "To a Wave," written by him twelve years before his death : " I, too, am a wave on a stormy sea ; I, too, am a wanderer, driven like thee ; I, too, am seeking a distant land, To be lost and gone ere I reach the strand; For the land I seek is a waveless shore, And they who once reach it shall wander no more." Baker's delivery was rapid, his voice melodious, his diction polished, his gesture free and full of grace. He had a splendid person, an eye full of fire, a noble forehead ; and nose and mouth and chin were finely chiseled. His hair had long been very gray. On the platform his manner was marked by perpetual animation. He loved all arts, all sciences. His imagination was rich, his reading wide, his memory extraordinary. His countenance and bearing and his gray locks recalled the picture of Thorwaldsen, of whom it was said that when he moved in the midst of a crowd, it would separate as 20 BENCH AND BAR IN CALIFORNIA. if it felt the presence of a superior being. His disposition was the perfection of amiability. Jn his most heated forensic and political contests he was never betrayed into saying an unmanly thing of an adversary. He was a giant before a jury. So great were his gifts of oratory that his knowledge of law has been underestimated. But he was learned in the profession of his choice — a profession that opened so broad a field for the display of his varied powers. Now and then, and here and there, has been heard the promise of a publication of Baker's Speeches, Lectures, etc., in book form. So engaging a volume may never appear. There has been issued, however, a "Sketch of the Life and Public Services of Edward D. Baker," by Joseph Wallace, (Spring- field, Illinois, 1870). Those interested will find Baker's best political speeches in our libraries, in the files of the old Sacramento Union under dates of June 9-10; July 2-13-15; August 23-24; September 22-30 — all in the year 1859; and October 26, and November 5, i860. His "Atlantic Cable Oration," beautiful beyond eulogium, is the opening piece in my "California Scrap Book" (1869). His moving address at the burial of State Senator William I. Ferguson (who fell in a duel) September 16, 1858, his nobler "Broderick Oration," September 18, 1859, the imperishable words of Gen. James A. McDougall on the death of Baker, delivered in the United States Senate, Gov. Stanly's Oration at Baker's burial, and Thos. Starr King's brief but thoughtful address at the great man's newly opened grave, are all given in full in my "Representative Men of the Pacific" (1870). The address last referred to is a masterly assertion of the soul's immortal life. The declaration "Paul goes to an immense service still as an Apostle; Newton to reflect from grander heavens a vaster light," never fails to stir me when I see the preacher's marble tomb. A broad street in San Francisco, not open at Baker's death but now lined with dwellings, bears his name. It will recall his fame when the ceme- tery where his mortality lies has long ceased to be the city of the, dead and been added to the domain of throbbing life. CHAPTER II. Hall McAllister— The Veteran of the Bar— Scion of a Line of Lawyers— A Name Scattered Through Seventy Volunie9 of Reports— Personal Description— A Practice of Widest Range — Extraordinary Capacity for Work— Manner of Trying Cases — A Contrast with Edmund Randolph— Anecdotes— Judge Lake's Estimate of His "Muse"— Mr. Papy's Pleasantry. Glance at the date on the title-page of this volume, and reflect that Hall McAllister has been in continuous practice at the San Francisco Bar since the year 1849 ! If there have been some in whose variable radiance his steady light has been dimmed now and then, he has illustrated the happily expressed truth that the prolonged sunshine is better than a flash of lightning. Through all this stretch of years he has kept faith with his profession in all its branches. The tide of his practice has known no ebb since its first swell in the middle of the century, and it has had an exceptionally extended range. Moreover, his indefatigable industry in preparation, his serene patience in the elucidation of intricate facts, the remarkably thorough way in which he tries his whole case, and the freedom with which he is consulted by lawyers generally, are qualities and considerations that lift him to the distinction of primus inter pares. Is he as old in years as all this implies ? No. His step is light, his mind clear and strong as ever, and, besides doing a great deal of work at night, he is regularly in his office long before "office hours" open. He was born in 1826. A native of Georgia, of remote Scotch extraction, he comes of a line of American lawyers. His grandfather, Matthew McAllister, held under Washington the office of United States District Attorney for the , southern district of Georgia. His father, Matthew Hall McAllister, held the same position by appointment of John Quincy Adams, and in 1855 became, by appointment of President Pierce, the first United States Circuit Judge of California. Hall McAllister arrived in San Francisco in June, 1849, a year before his father came, and by way of the Straits of Magellan and Valparaiso. He took his place at this bar in August of that year, a novice among experienced men. He was a wary observer, in love with his calling, and entered the lists with that resolute purpose, which, if stubbornly adhered to, rarely fails to bring to the legal practitioner a fair measure of success. That period of probation from which lawyers — even those of the brightest 22 BENCH AND BAR IN CALIFORNIA. parts and promise — seldom find exemption, was with Hall McAllister exceptionally brief. Several favorable circumstances conspired with his native bent and energy of character to cut his probation short, and to launch him auspiciously into the full tide of practice, Of an honorable and talented family, courted by society, enjoying the affectionate help of a father distin- guished in his own profession, anxious and able to assist and advance him; of fine person, robust health, resolute purpose, vigorous mind and a fixed ambition, he stepped into the arena ot professional life with the air of one who feels he has a hold upon the future, and with the almost absolute assurance of success. It is most true that he owed much to fortuitous circumstances; much to paternal promptings and guidance, "which nursed the tender thought to reason, and on reason build resolve— that column of true majesty in man;" but it is just as true that even without such aids he was born to be what he long ago became, one of the few unchallenged leaders of a large and able bar. He has never known what it is to be poor, or without friends, although he is nobody's hero, and has never wielded great wealth. But even if he had set forth upon his brilliant career without the advantages of competency, friendship and a liberal education, he would surely have arrived at the desired goal by slower marches but in good season. If we attribute his auspicious entry into professional life chiefly to good fortune, we must give him credit for the unsurpassed zeal and industry which have distinguished his progress. He might have builded on his father's fame, but instead thereof he laid his own foundations, and the superstructure which he has erected is entirely his own. He has a more vigorous and comprehensive legal mind than his father possessed. The personal appearance of some men conveys a false idea of their ability and standing. Some really little fellows are unduly exalted. in the mind of the stranger, by their Websterian heads,' and countenances cast in the very mold of wisdom. Others, who possess abilities of the first order, attract attention only when deep emotion lights up their else expressionless faces, or when some great cause or occasion stirs their sluggish blood. But the features and presence of McAllister certainly deal honestly by the observer. His very build and bearing give to the beholder a correct sugges- tion of his capacity. The impression is not that of greatness or genius," but of strength. Whether we meet him in the street, in the court-room or in his office, we feel that we are in the presence of a strong man, to grapple with whom in his chosen calling must be serious business. We look upon him generally as a leader among men, and in the court-room, especially, We see in him the monarch of the local bar. He has a large, square face, an unusual proportion of it below the eyes; a forehead neither full nor high, and lower than the average of men of ability, with no corrugations to betray the earnest study he concentrates upon his BENCH AND BAR IN CALIFORNIA. 23, causes; a head thick through and noticeable chiefly for its peculiar and irregular shape; the whole suggesting the seat of a practical mind, highly endowed with the powers of analysis and conclusion. His large and heavy frame lends to him the aspect of solidity and power, but his movements of body, notably lively for a man of his stature, militate somewhat against this impression. This alertness of movement corresponds with the action of his mind; and, like the latter, never runs into haste. Thoroughness and dispatch exercise joint and harmonious control over his whole being. I have alluded to McAllister's custom of bringing out his case in all its strength and symmetry. In the trial of a cause his manner is, on the whole, admirable. He is cautious, but caution never fetters him. He is rapid, but is never carried beyond his object. Whether he goes over, around or through the chosen position of an adversary, he opens up a broad road, and leaves that position harmless behind him. One of his most noticeable habits is to take down with his own hand all the evidence of witnesses. He is eternally writing. St. Augustine said of that "most learned of the Romans," Marcus Terentius Varro, that he had read so much that we must feel astonished that he found time to write anything, and he wrote so much that we can scarcely believe that any one could find time to read all that he had composed. It may be said of McAllister, that he reads so much, it seems hardly possible he can write much ; yet it would engross the time of almost any person to read, not what he composes, but what he writes down in court. What he writes would hardly prove as entertaining as the critical, philosophical and other treatises of Varro, for what drops from his pen is testimony. This, however interesting to him as bearing on his cause, would be dry, cold and barren enough to others. This habit of taking down testimony, although the short-hand reporter is doing the same task more accurately, is very advantageous to an advocate. And it loses half its benefit when done by proxy, for the evidence is then the less impressed upon the advocate's mind. This duty is generally shirked, because it is hard work, and is unjustly regarded as merely manual. Successful lawyers usually turn aside from the clerical details of their busi- ness. In McAllister this habit of which we speak is in keeping with his unflagging industry. The late'Edmund Randolph was the opposite of McAllister in this as in some other respects. These two advocates, opposed in the trial of a cause, , presented an interesting contrast. Randolph's wonderful memory was' one of the most noticeable of his brilliant faculties. No matter how lengthy the trial, how numerous the witnesses, or how important the testimony, he disdained the use of notes, even though McAllister were opposed to him, urging his tireless pen through the whole trial. When a motion was made in the Twelfth District Court to adjourn as a 24 BENCH AND BAR OF CALIFORNIA. mark ■ of respect for Randolph's memory, the then Judge of that tribunal, called attention to this practice of the deceased, of trying his causes without taking notes, and urged the junior members of the bar to imitate the example as a means of strengthening the memory. It is to be hoped that this advice though given by a very excellent judge and lawyer, has not borne its legiti mate fruit. Few men have remarkable memories; none have perfect mem- ories. To strengthen the memory is commendable, and it is feasible, but to make it entirely reliable is hardly possible. Randolph could trust to this splendid faculty; but, generally, the advocate who imitates him will fall far short of his success. Whoso relies implicitly upon his memory is usually more showy than safe. One of the best teachers in the public schools of this State, Andrew R. Jackson, then principal of the Sacramento High School, once told his scholars of a man who, many years previously, had been Clerk of the National House of Representatives, and who possessed a memory so extraor- dinary that he was able to write up accurately the minutes of the most busy and stormy session:, without having taken notes. He did this day after day and week after week, until it was generally known how he got through with his work, when, although the fidelity of his journals could not be impeached, he was removed from his responsible trust. I am satisfied that my old preceptor believed this story, though he may never have investigated it more than I did. If it is true, the House of Representatives acted wisely in dismissing their brilliant and lazy servitor, because in his position he was unconsciously a dangerous man. McAllister has a good memory, but had he succeeded to that of Randolph he would yet adhere to his practice of taking ( copious notes. Without this practice he could try his causes well, but with- out it he does not seem to feel that he could try them thoroughly. This habit has so grown upon him that he sometimes goes through the motion of writing, even when listening intently to the court or opposing counsel. In trying a jury cause, he sits usually facing the jury, and rarely rising from his chair. His table is covered with books and papers, and a boy is ■ generally waiting to make fresh drafts upon his well-stocked library and his plethoric pigeon-holes. The court-room is for him a place of earnest work. He rests only when court takes a recess, and not often then. From the beginning to the end of the trial, he is writing, reading, questioning, object- ing, arguing, appealing. The observer is constantly impressed with his industry and watchfulness. In eliciting testimpny, McAllister exhausts the information, without exhausting the patience of the witness. He never bores or insults. He never plays the tyrant over a timid witness, and never leads a rash one to his undoing, just for the love of the thing ; never figures in any of the discred- itable scenes in which lawyers and witnesses grapple in wordy combat. BENCH AND BAR IN CALIFORNIA. 2$ McAllister, like every thoroughly trained lawyer, is politic, and therefore polite — alike courteous to court, counsel, jury and witness. To counsel associated with him in the trial of a cause he is uniformly deferential, but will not play second fiddle. He always leads his side. He is not troubled with the idea, which haunts so many legal small fry, that to be respectful to an adversary is to succumb to him, or that to listen decently to a postulate is to admit its soundness. He never sneers at a proposition, and never states one dogmatically. He meets the tyro with his hesitating step, and the veteran with his measured stride, with the same air of respect. With all his dispatch, it is yet in the fullness of time, and, with a clear comprehension of his cause, that McAllister rises to address his familiar and favorite auditory — the jury. He is now in the house of his friends, and in speech and manner he shows that he is conscious of it. Having omitted nothing as regards introduction of evidence, so now he leaves nothing unsaid which the jury should hear. He speaks smoothly, exhaustively, yet avoids prolixity. The jury have witnessed his patient management, his shrewd generalship, the evidences of his careful preparation, and if, when he rises before them, they have not already recognized the fact that he knows his case to the utmost details, he soon convinces them of it. They appreciate his, address to their reason, admire his methodical arrangement of facts, and find entertainment in his argument. Without betraying any effort to subject them to any personal influence; always respectful without being patronizing; ever earnest, but never inflamed; fluent, yet not verbose; easy in manner, yet a stranger to dramatic effect, [he challenges respect for himself, even when he fails to elicit sympathy for his cause. His voice and physique, as well as the cast of his mind, are more suited to the argumentative than the pathetic style. At times, however, in capital cases, he approaches eloquence, drawing on the classics to give point and polish to his appeals. In quoting Shakespeare and the Bible he is quite happy. His elocutionary powers belong neither to the first nor the second order. Nothing can be said for his gesticulation; his metaphors are few and not striking, and, as to apostrophe, that perfect flower of Baker'soratory, he rarely calls it to his aid. This Bar leader has no specialty. Great lawyers are often distinguished for specialties ; too often the public assign them to specialties, when, in truth, they have none. McAllister has never suffered from this popular propensity. Not only has he no specialty, but the fact is acknowledged by all. Whether his case involves land titles, inheritance, patent right, private franchises, personal liberty, human life, or constitutional law, he is equal to the occasion. A prominent member of this bar — a former Judge of one of our District Courts* — once took occasion to bear public testimony to this fact. *Address of E. D. Sawyer to the jury, in Tyler vs. Holladay, Twelfth District Court, April, 21, 1875. The parties to this suit were lawyers. 26 BENCH AND BAR IN CALIFORNIA. As a pleader — a writer of pleadings — our friend is careful and correct, evincing an intimate acquaintance with English forms and precedents. Although he probably does more work than any member of the California Bar, there is no one who takes things easier, or whom work hurts less. He owes this in a great measure to his powers of endurance — a splendid auxiliary to close mental application — and to his habit of , investigating and methodiz- ing at the same time. He is full of life and energy , has naturally a high temper, which he has under good [control ; seems to have schooled himself to be slow to anger ; is not combative ; has few intimates. This advocate has one habit, which some commend and some condemn— that of interjecting into his arguments doggerel of his own manufacture. Perhaps it ought not to be condemned, because he generally turns it to account. It is at least better than punning, and an advocate per- force often indulges in pleasantry of some kind to cause a laugh and give sur- cease from the monotony of argument. "A little nonsense now and then Is relished by the wisest men." It may be said of McAllister's poetry, that it is more pleasing to the ear when spoken by its author in court than it would be to the eye if in print. At any rate I shall not print any of it. Occasionally he receives punishment for his temerity in this line — or rather in these lines. In his argument in the case of the Hibernia Savings and Iyoan Society vs. Mahoney et al. , Fourth District Court, 1877, he let go some verses on which issue was joined by the opposing counsel, Judge Delos I,ake. The latter, recalling the stereotyped expression "more truth than poetry," declared that his adversary's verses contained "more poetry than truth," and added that "that was not saying anything for the poetry." Among this advocate's minor resources is an unfailing vein of humor, not, noteworthy for its richness, yet not to be omitted in this sketch. Oh one occasion he was called at the eleventh hour, into a case in which he had a colleague who was well prepared. While the latter was examining a witness, his memorandum of authorities fell under McAllister's eye, and was soon copied on a fresh sheet of paper, and, in a short time, a messenger laid the books on the table. The time for argument arriving, McAllister's colleague called on him to open, which he did by reading from his own books his asso- ciate's authorities. In closing, he said his associate would supplement what he had said by further argument. The ' 'associate' ' arose, with serious front, and observed, poor man ! that he had intended to address the court, but that Mr. McAllister had covered the ground so thoroughly that he deemed it unnecessary to add anything. A certain lame lawyer had a certain lame client. The two resembled •each other strongly in their awkward gait and clumsy locomotion. The BENCH AND BAB IN CALIFORNIA. 27 litigant, while looking for his attorney on the street one day, hobbled up to McAllister and asked-: "Have you seen lawyer going along this way?" "I never saw him go along airy other way," was the reply. Among the more important of the law causes in which McAllister has won renown worthy of special note was that of Tompkins vs. Mahoney, tried in San Francisco in the year 1865. The plaintiff, a lawyer, recovered judg- ment against the defendant for some $30,000, including interest for legal ser- vices rendered during a period of several years. McAllister was his attorney, and his excellent address to the jury so pleased his client that the latter declared, in his enthusiasm, that he would have given one-half of the amount of the verdict for a verbatim copy of the speech. (The courts had no official stenographers at that time.) Mr. McAllister married a lady of rare accomplishments, a daughter of the late Samuel Hermann, and has raised a large family. He owns a city residence, a beautiful summer home in Marin County, and is in comfortable circumstances. Reference to family recalls a scene which occurred in the early days in the United States Circuit Court, of which tribunal Hall's father was judge, Hall's brother was clerk, and Hall himself the chief practitioner. It happened one day, so goes the story, that as McAllister was presenting an ex parte motion, no one being in the court-room but the father and the two sons — judge, clerk and counselor — J. J. Papy, a well known attorney, now •deceased, having business in the court, opened the court-room door, and, after a hasty glance, was about to withdraw, when the judge said : "Come in, Mr. Papy." The latter bowed his acknowledgments to the bench, and said : "Your honor will pardon me ; I hate to intrude into a family meeting." The punctilious Mr. Papy then silently stole away, and the argument was resumed] As I turn from this commanding figure, his "chariot rolls on fortune's wheel' ' as ever. Though his triumphs are many and enduring ; his name scattered all over our seventy voluhies of Supreme Court Reports, beginning with the case »f Payne vs. Pacific Mail Steamship Company in vplume I ; he continues to work as might one who felt the v sharp spur of want. Possessing a powerful constitution, mindful of the laws of health, and retaining all his first love for his profession, he is destined, in the ordinary course of nature, to hold his place at this bar for yet a considerable period. He is one of the men who labor through life. He will die in harness. CHAPTER III. John B. Felton— College Days— Early Partnership with Edward J. Pringle— Celebrated Cases— The Great Limantour Conspiracy —The Local Option Question — "Mortgage Tax" — The "City Slip" History— Felton' s Enormous Fees— His Learning, Genial Nature and Sparkling Conversation— The Bulkhead Bill— Allusions to Professor C. C. Felton, Judge Lorenzo Sawyer, Judge T. W. Freelon, Levi Parsons, Gov. John G. Downey, and others. John B. Felton's professional life began and ended in San Francisco. He was born in Saugus, Essex county, Massachusetts, in 1827, and died at his home in Oakland, May 2, 1877. His father was superintendent of an alms- house in Cambridge, and lived and died in very poor circumstances, leaving three sons, all of whom became men of mark. One was President of a rail- road company in Pennsylvania. Another was the great scholar, lecturer and writer, C. C. Felton. The father managed to get this son into Harvard, and lived to see him attain great literary fame. C. C. Felton was connected with Harvard from the time she received him as a scholar until his death. After graduating he became successively a L,atin tutor, a Greek tutor, Professor of Greek, Eliot Professor of Greek literature, and President of the College. Dearly he loved "the bright clime of battle and of song" and was said to dwell in ' 'the atmosphere of ancient thought. ' ' Some of the most instructive and entertaining pages of the New American Cyclopedia are from his pen — the articles on Agassiz, Athens, Attica, Demosthenes, Euripides, Greece and Homer. Professor Felton educated his brother, John B., who was many years his junior, and who upon graduating from Harvard in the class of 1847, obtained through the Professor's influence a position as Greek tutor. He had proved himself to be one of the best Greek scholars of his time. He did not long pursue this vocation, having determined to read law. Among his classmates at Harvard were E. R. Hoar and Horace Gray. While at his law studies John B. Felton was sent by his brother, the Pro- fessor, to Paris,! where he remained a year, studying the Civil Code, indulging in the amusements of the gay capital, and making himself thoroughly acquainted with the French language, which he ever after spoke with great ease and correctness. He also obtained a good knowledge of Spanish, having made up his mind to settle in San Francisco, and knowing this tongue would BENCH AND BAR IN CALIFORNIA. 29 be of service to him professionally, as it proved to be more than once — notably in the Limantour case, to be noticed. It had been agreed at college between Felton and Mr. E. J. Pringle that they would commence the practice of law in partnership, in San Francisco. The two young men were in college together two years, Mr. Pringle being the elder and graduating two years before his friend. This was an alliance between Massachusetts and South Carolina. Mr. Pringle, who is still in active practice here, came to San Francisco by the Nicaragua route, arriving in December, 1853. Felton sailed around the Horn, in order that he might thoroughly acquaint himself with the structure of seagoing vessels and with nautical terms, hoping to profit by it in admiralty practice. He never had much admiralty practice, however. He arrived here in the spring of 1854, and immediately formed a partnership with Mr. Pringle and commenced law practice. Both gentlemen had been admitted to the bar in the East. Felton came to San Francisco a young man, but thoroughly equipped as a lawyer. He had large resources of mind, great breadth of comprehension, wonderful inventive power as applied to principles, and astonishing quickness and exact- ness of observation. The faculty was his of finding out what the law ought to be, and what, therefore, it is, unless fettered by technicalities ; and the adroit- ness and subtlety to use technicalities when they suited his purpose ; but he preferred broad, catholic views upon all questions of right and wrong between man and man. The city slip litigation was what first brought Felton fame and fortune. A. C. Whitcomb, now a wealthy resident of Paris, was then a member of the firm, its style being Whitcomb, Pringle & Felton. How Felton's name seems out of place at the tail end of a firm! This firm seems to have stood on its head. The eastern part of San Francisco had been laid off into water lots of uniform size, 25x59.9-12, except a slip now embraced within Clay, Sacramento, Davis and East streets, which had been left open for purposes of navigation. In December, 1853, the city sold this slip at auction to many purchasers — in lots 25x59.9-12. There was a great boom in real estate then, and the property brought enormous prices ; terms, twenty-five per cent cash, fifty per cent in sixty days, and twenty-five per cent in four months. When most of the purchasers had made the second payment, but before any had made the last, there was a sudden collapse in the real estate market, the lots in question depreciating some fifty per cent. One of the purchasers consulted Felton, to see if there was not some way to repair the loss. After examina- tion, he replied that the purchasers could recover their money from the city ; one after another of the unhappy men went to Felton, until his firm became attorneys of record for every purchaser. About one million of dollars was at stake. Felton discovered that the ordinance of the Board of Aldermen, under which the lots were sold, was passed by a majority of those present, but not 30 BENCH AND BAR IN CALIFORNIA. , by a majority of a full Board, while the city charter declared that every ordi- nance must be passed by a majority of a full Board. One of the Board had resigned, leaving only seven members. The ordinance was passed by a vote of four against three. Felton took the ground that the ordinance was invalid, and consequently that, the sale was void; and that the purchasers could recover their money. The pioneer case in the long litigation that followed was The City of San Francisco vs. Hazen (5 Cal. , 1 69) . The city sued Kelsey Hazen, a real estate operator, to recover on his promissory note, given for a deferred payment. Judge Lorenzo Sawyer was then City Attorney. The case was very elaborately argued in the Twelfth District Court, by Sawyer for the city and Felton for the defendant. The lower Court gave judgment for the city, but on appeal the Supreme Court sustained Felton's position and reversed the judgment, with costs. But, as Judge M. C. Blake once said from the bench : "No man knows the law ; only the Supreme Court can tell it." And the Supreme Court sometimes takes back its decisions. In the second city slip suit — Nathaniel Holland vs. the City of San Francisco (7 Cal., 361) the plaintiff sought to recover back the purchase money. The city called Hoge & Wilson into the case, and the District Court decided for the plaintiff. The city appealed. In the Supreme Court Messrs. Hoge & "Wilson made the ■ point that the sale of the lots was valid, because the city had ratified it ; that the ratification consisted in the city's receiving the money, and by a sub- sequent Board of Aldermen making appropriations of the same. This view prevailed in the Supreme Court which stated that its decision was not in conflict with the prior one in The City vs. Hazen, inasmuch as the second, or ratifying ordinance, had not been cited to the Court on the appeal in that case. In the case of McCracken vs. the City, reported in 16 Cal., 591, Judge Field ably and patiently reviewed the whole question. He held that the law was not properly laid down in Holland vs. The City. (The opinion in the Holland case was by Judge Burnett, Judge Terry concurring and Judge Murray dissenting). Judge Field held that the subsequent ordinance' was not a ratification of the sale — that the city had not conveyed any title to the purchasers — that the city still owned the property and must refund the sums collected. Judge Cope, in a separate opinion, held that a purchaser, in order to maintain an action for money had and received, must first make a recon- veyance to the city. Acting upon this all the purchasers made deeds to the city and got judgment against the city for their several sums. The Legis- lature, on April 17, 1862, passed an act providing that the purchasers should take the lots at an appraised value, they to be credited with all payments made, and the city to issue to them its bonds for the amount of the difference between what they had paid and what the lots were worth. In pursuance of this law the Supervisors, in 1863, passed an ordinance, under which the lots BENCH AND BAR IN CALIFORNIA. 3 1 •were sold to the original purchasers on these terms. All of these cases were argued elaborately and with great power by Mr. Felton. His connection with them made him very widely known and created for him a vast constituency of clients. The very extraordinary case of Limantour, in which Mr. Felton made a fine struggle against fate, will attract the attention of times remote, on account of the unparalleled audacity and magnitude of the plaintiff s claim and the criminal romance which invests it. Jose Yves L4mantour was a Frenchman, who, before coming to California to prosecute the largest claim ever presented to our courts, had lived some twenty years in Mexico, where he was a gov- ernment contractor and dealer in arms. In the pursuit of that business he had greatly prospered, fattening on the misfortunes of the country, which was generally convulsed with civil wars. In 1841 he visited California and remained a year at Yerba Buena, now San Francisco. He met here the traveler and author, Duflat de Mofras, who was his countryman, and who advised him to buy land on this peninsula. In 1844 he made a second visit, ■ and a third in 1847, his business in the latter year being to supply arms to the California forces then feebly struggling to save their native land from the grasp of Uncle Sam. His vessel, loaded with munitions of war, was overhauled at San Pedro by the United States sloop-of-war Warren, under Commodore Biddle, but a search revealed nothing contraband. He had learned that he was pursued and had thrown his cargo into the sea. Being allowed to proceed, he returned to Mexico, wherehe remained five years. In November, 1852, hecame again on a mission of peaceful conquest, not as the representative of a foreign gov- ernment, but as his own embassador ; not vi et armis, but with pockets full of parchments wherewith to subject the richest, and most populous part of the country to his legal dominion. Congress, in 1851, had passed ' 'An act to settle land claims in California, ' ' and had established at San Francisco a I,and Commission to pass upon all land claims based on Mexican titles. It was provided that no claim should be heard that should not be pre- sented before' the third day of March, 1853. I n February, 1853, I^imantour filed with the I,and Commission eight claims to land, which, by reason of their magnitude and the profound ignorance of everybody concerning them up to that time, created consternation throughout the city and the adjacent country affected. I^imantour claimed, First — Four square leagues, comprising over 15,000 acres, covering the city of San Francisco, except a strip off the northern end. Second — Yerba Buena, Alcatraz and the Farallones Islands and Tiburon Point, which commands the strait between Angel Island and the Marin main land. Third — The I^aguna de Tache, covering eleven square leagues . Fourth — The tract of eleven square leagues called I,up Yomi. Fifth — Eighty square leagues near Cape Mendocino. Sixth — The vineyard of San Francisco 32 BENCH AND BAR IN CALIFORNIA. Solano. Seventh — Six square leagues called Cahuenga. Eighth — The Cienega de Gabilan of eleven square leagues, which embraced the city of Stockton. The claims aggregated about 620,000 acres, and a money value which exceeds to-day, and did even then, the combined wealth of all the railroad magnates of the United States. A protracted judicial inquiry followed. Limantour asserted that the lands claimed by him were granted him at different dates in the years 1843 and '44 by Governor Micheltoreno in satisfaction of and reward for his services to the Mexican government in advances of money and military supplies. The Land Com- mission confirmed the first and second claims — those covering the city of San Francisco and the islands named — and rejected the other six. An appeal was taken to the United States District Court, where Edwin M. Stanton was specially employed to assist the United States District Attorney, and Whitcomb, Pringle & Felton appeared for Limantour. Pend- ing this appeal, a card was published by one Augustus Jouan, agent of Limantour, who had accompanied the latter from Mexico to San Francisco, setting forth that Iimantour had broken faith with him, and that for a con- sideration, he, Jouan, would make a revelation that would defeat the Liman- tour claims. The citizens "saw" him, and he revealed. He said Eimantour had frequently told him that his grants were fabricated; he had himself, at I/imantour's request, altered figures to reconcile dates; that Limantour had shown him a letter from Robin — Lhnantour's partner — in which Robin, in consequence of a quarrel with Eimantour, threatened to expose the latter as a forger of title papers; that Francois Ja'comet, a clerk of Limantour, had declared that one Letanneur wrote one of the grants in 1852 — nine years after its alleged execution. He suggested that Jacomet be sent for. Jacomet was prevailed upon to come from Mexico, and, in 1856, he gave testimony corroborative of that of Jouan. Letanneur, who was here in the city ' 'on business," was taken before the grand jury, and there testified that he had written one of the alleged grants. Mr. Limantour (whose name should not be given the French pronuncia- tion, but should be called in broad English, L,ie-man-tour — that's the way most of our citizens pronounce it), was tapped on the shoulder by a federal officer and locked up. The grand jury indicted him for forgery and perjury. He gave bail in $10,000. One of his friends was willing and able to qualify on his bond, but a second surety was requisite. Messrs. Whitcomb, Pringle & Felton persuaded Michael Reese to come to the rescue. But Michael required a written obligation of indemnity from Whitcomb, Pringle & Felton before he would sign the bond. So great was the faith of these gentlemen in the validity of their client's title, that they promptly agreed to indemnify Reese. This is good enough proof that the insinuation against their integ- rity in this cause was baseless. The Land Commission did not find out any BENCH AND BAR IN CALIFORNIA. 33 fraud. The United States Court discovered no fraud. The villainy of the claimant was uncovered by an accomplice. After it was revealed, it was clear enough. Everybody wondered that it was not sooner found out. John B. Felton enlisted his great abilities in the cause, because he honestly believed it to be a great cause and a good cause. Its fraudulency was brought to light by a mere accident, and the most astonished man in the community was John B. Felton. To quote the Hon. Jeremiah S. Black: "The genuineness of Ivimantour's title was attested by the signature ot a Mexican Secretary of State, who had previously been a foreign Minister, and was afterwards (even after the fraud was shown) a Judge of the Supreme Court. It was sworn to by a Mexican statesman, who had a reputation as high as any of his class, and it was certified under the hand of the President of the Republic in a communication addressed from the National Palace at Mexico to the I,and Commissioners. But all these seeming marks of authenticity were placed there to cheat and defraud. It was afterwards demonstrated and solemnly adjudged that Bocanegra's attestation was a shameless falsehood; Castanares was perjured; and Arista, the President, was engaged with the others in a scandalous conspiracy to impose on the courts of the United States. ' ' Limantour, after a few months absence, returned to San Francisco with additional "proofs," and had his cause tried. Mr. Felton felt reassured, and made out what was considered a perfect case. But in the very first fruition of hopes long deferred, it was hinted that the impression on the alleged ' 'grant' ' should be compared with the government seal ! This was done, and at once many differences were apparent. The end then came soon, and Eimantour was revealed as a gigantic forger and conspirator. Mr. Felton declined to argue the case. Iyimantour succeeded in getting safely out of the country. The government brought suit on his former bail bond for $10,000, and recovered judgment against Michael Reese and his co-surety for the amount. An appeal was taken to the United States Supreme Court, Messrs. Whitcomb, Pringle & Felton being the real parties interested, as they had contracted to hold Reese harmless. They succeeded in getting out of it, but paid Hon. Eugene Casserly $1,000 for arguing the case at Washington, he then being a United States Senator. The Supreme Court held that Mr. Casserly' s point was good — that the sureties were released from liability, because the United States District. Court had once continued the Eimantour criminal case against his consent ! There is a lawyer in San Francisco who is in the habit of referring, now and then, to a Supreme Court decision as ' 'a beautiful decision. ' ' This was a ' 'beautiful' ' decision. It takes a lawyer, though, to detect the beauty. A man outside the profession might be excused for insisting that Uncle Sam was entitled to this $10,000. He was not suffering for it, however. He could lose it better than Whitcomb, Pringle & Felton could. 34 BENCH AND BAR IN CALIFORNIA. It would be tedious to go over the list of celebrated causes with which Mr. Felton was connected. Two of the most important of them were the mortgage tax case and the local option case. On the first the court, in a model opinion by Judge McKinstry, took Mr. Felton's view — that to tax a mortgage and also the mortgaged property as though it were not incumbered, is double taxation, and in some cases may be manifold taxation. In the local option case the question was whether the law was constitutional, which provided that the people of any city, town or township might by # vote decide whether spirituous liquors should be sold in such city, town, or township. In the Supreme Court S. W. Sanderson and Lloyd Baldwin appeared for the temperance men, and John B. Felton and W. H. Patterson for the other side. None of these survive. Sanderson (an ex-Supreme Judge) and Felton were the men who studied and argued the case. It was another great triumph for Felton. He contended that the law was in direct opposition to the natural rights of man. The constitution of California, said he, declares these rights to be inalienable. The rights of property, life, liberty and the pursuit of happiness precede government, and the only limitation of these rights is the rule that they shall not be used to the injury of others. A man has the right of using or abusing his own property, provided that in so doing he does no' injury to another. His natural rights can only be bounded, limited or restricted by the natural rights of others. The acts which a man can be prohibited from exercising over himself or his property must be directly and necessarily injurious to others. He cannot be prevented from using or abusing his own property merely because other individuals, or the community, are indirectly injured thereby. The right to use wines, beers, liquors, etc., is. a natural right of .property. It can only be limited or restricted by the Legislature, and then only so far as the exercise of that right interferes, directly with the rights of others. If a man uses these articles in excess — to his own injury only, and not to the injury of others — he is exercising the right of abusing his own property, and, though blameworthy, is not within the prohibitory power of the law. If, through such excess, he becomes dan- gerous to the lives or property of others, he then becomes amenable to the law. But, the article, the abuse of which has led to his thus becoming dan- gerous, cannot be taken away from others, who are capable of using it in a proper manner. When an article capable of proper and legitimate use is also capable of being used to excess, and thus prqduce misery, the simple possi- bility of its being used to excess does not prevent it from being property. The Legislature can regulate the use of it, but cannot prohibit the use of it.. The Local Option law prohibited the use of liquors. It was, therefore, void. Continuing Felton's argument, if a man takes his own life by eating or ■ drinking things that are unhealthy, so long as he is the only one injured,. BENCH AND BAR IN CALIFORNIA. 35 the law cannot reach him. There is no power in the legislature, if he is~ sick, to lend its sanction to the prescription of the physician. Though assured that what he is about to eat is sure death to him, the law cannot interfere. His actions are a source of grief and woe to his family, the grief may be a source of disease or death to his father or mother, but society has no correctives to apply and no punishment to inflict. The injury, though .great, is indirect. His opinions are so perverted and backed with so much plausibility that, through their influence, another loses his faith in all religion, becomes a profligate or murderer, yet he is not an accomplice in the -crime or a sharer of the punishment. The minister who bought the place of Shakespeare, cut down the mulberry tree planted by the poet's own hands. The civilized world still -execrates him for it. If Shakespeare had left the single copy of "Macbeth," or "Hamlet," or "lear," to a friend, that friend could have destroyed it and caused incalculable damage to the world. The owners of the collections of Raphael, of Rubens and Titian, can destroy them and cause more evil than if an army were slaughtered. I may make such use of my land that property in the neighborhood will lose all its value. Yet the law is powerless. I may so conduct myself in my family that my wife and children cannot live with me. I may promulgate opinions which set society on fire. Yet, inasmuch as the injury resulting from all these things is not the necessary consequence, but only an indirect one — inasmuch as I have exercised a natural right without directly hurting another — I cannot be punished. I deserve punish- ment, but there is no one possesses the right to inflict it. The natural rights that belong to the citizen cannot be taken from him without vesting absolutely despotic power in some one or somebody. Force, ignorance, the pride of caste, may ignore them, but, if suppressed, they will rend asunder any government. An able, bold judiciary must stand forever on the frontier which separates natural rights from civil rights. Spirituous liquors are property in all civilized countries. Their use is general. A very great class of persons make a good use of them. The Local Option law practically denies their use to the man of melancholy disposition, the man of impoverished blood, those enfeebled by disease and to the temperate man who can use the good things of this life. Why not regulate love ? If I use ardent spirits discreetly, I do no harm to society, to my family or to myself. Why, then, interfere with me because another man uses them indiscreetly ? It would be as reasonable to prohibit me from keeping horses, because my neighbor, a bad driver, may be killed by his; as reasonable to prohibit me from begetting children, because my neighbor is guilty of debauchery, adultery or rape; as reasonable to prohibit me from indulging in love, because an ill-regulated love in another leads to jealousy and crime. love is the cause of more crime than drink. 36 BENCH AND BAR IN CALIFORNIA. laughter of his own. Herein, he closely resembled his distinguished father- in-law, Judge Joseph G. Baldwin. Baldwin was full of fun, and laughed uproariously at his own jokes. Baldwin and Felton never impaired the effect by their turbulent enjoyment of their own sayings. Their laughter seemed to follow naturally, and it was as refreshing to hear it as the wit that evoked it. It convulsed all who heard it. Of course Felton was intimate with Shakespeare. J. F. Bowman (who died in 1884), once entertained the members of the Bohemian Club with a disquisition on the authorship of the Shakespeare plays. Felton heard of it and asked Bowman if there was really any basis for the claim that Bacon was the true author. He was assured that there was a good deal to be said in favor of the Baconian theory. Felton and Bowman oystered together that night, and Felton listened with great interest to Bowman's recapitulation. In the discussion that ensued, Felton astonished Bowman by his thorough Shakespearean scholarship. He spoke with enthusiasm, and Bowman wondered if his friend had not made Shakes- peare the special study of his life. The profession, and the people heard with genuine sorrow of the death of this unselfish spirit, this master of the law. In the Supreme Court, Mr. Pringle, his old college mate, friend and partner, and his ardent admirer, Clark Churchill, since Attorney- General of Arizona, paid tender tribute to his memory. Eminent counsel made appropriate remarks in all the courts, and the judges responded with feeling. The bar memorial, addressed to the courts — a classical production — was from the prolific pen of Joseph W. Winans. I doubt if Mr. Winans ever wrote anything finer than this, of which I offer two extracts. "To the profession of his choice he consecrated the supremest labors of his life. With him the law was no narrow system, fettered by precedent and cramped by forms, but a broad, comprehensive science, devised by the highest wisdom, for the proper direc- tion and government of man in all the relations of society and State. Imbued with such a conception of its dignity and objects, he was singularly successful, through the sound- ness of his reasoning, the persuasion of his address, and the resistless power of his logic, in eliminating and bringing into practical enforcement those great principles of truth and right which constitute the theory of jurisprudence. It was the aim of his mental effort to convince the understanding, rather than inflame the passions. Possessing a faculty for accumulation almost unexampled in the practice of the law, he made no idol of his acquisitions, but what his toil had won his liberality dispensed with lavish hand. In his munificence he was a prodigal ; in his hospitality, a prince. " His life, though blasted in its prime, was fruitful of achievement, and his memory is fragrant with reminiscences of noble words and manly deeds. Contemplated as a patron of the arts and sciences, a promoter of public and private enterprises, and a phil- anthropist, he was in each capacity alike conspicuous ; and severely will be felt the absence of that stimulating hand." BENCH AND BAR IN CALIFORNIA. 37 Of Felton, let me recall last what I love to recall best — his own noble utter- ance in closing the oration at the dedication of the Mercantile Library build- ing, at San Francisco, June 18, 1868: "And now," he said, " I dedicate this temple to the true mercantile spirit — to the spirit of true honesty, which, rejecting the letter of the written contract, looks to its spirit; which, disdaining all deceit, all mean and petty advantages, takes the just for its rule and guide; to the spirit of true equality, which, stripping off from man all accidental circumstances, respects and reverences him according to his merit; to the spirit of enterprise, whose field is the earth, the air, the sea, the sky, and all that in them is; to the spirit of munificence, that never tires in lavishing its treasures on all good objects, on the scientific expedition, on the library, the University, on the cause of re- ligion, and on the soldier battling for the right; to the spirit of loyalty, that submits calmly and patiently to that great bond which holds society together — the law — which aims to reform, but never to resist or overthrow; to the spirit of patriotism, which follows with affection, pride, and devotion the daring mark of our country's flag; and to the spirit which worships God. " CHAPTER IV. Joseph P. Hoge— Sago of his Party and Nestor of the Bar— His Record in Congress— A Colleague of Stephen A. Douglas and E. D. Baker— The Oregon Question— The Wilmot Proviso— The Galena Lead Mines— At the Bar in Three States— Humorous Notes— A Long Prosperity and a Green Old Age. « It would seem to imply a lack of respect to refer to this venerated Nestor of the San Francisco Bar as plain Mr. Hoge ! But such he is, and no more. He is no Colonel at all, except by courtesy. He never had his "baptism of fire," as Napoleon III. styled it, or, to use the heroic speech of Caleb Cush- ing, he was never immersed in "^the red baptism of the battlefield;" nor was he in the militia, even. " I tell you it is a great thing," said the versatile William H. Barnes (not William H. ~L,. B.), in one of his capital temperance talks, ' ' I tell you it is a great thing to be able to do something for your fellow man. " It is very true. And the man who can make a Colonel, or a General, or a Governor of another by his own simple fiat, has not lived in vain. When the late Benjamin P. Washington, once collector of this port, and for so many years editor of the Examine?', arrived at Sacramento in 1850, after a weary tramp across the continent, as soon as he had washed himself and put on a clean shirt, he was ushered by General A. M. Winn (who later founded the order ' ' Native Sons of the Golden West ' ' ) into a little circle of pioneer upper tendom, where some half dozen ladies were trying to accommodate ten times as many gentlemen in the labyrinths of the dance. " Ladies and gen- tlemen," said the General, " let me introduce Colonel Washington, of Vir- ginia." " That's the way I became Colonel," the Colonel told me in 1870. When Judge George W. T3 r ler concluded to make " General " Cobb he only spake the word, and it was done. I refer not to H. A. Cobb, the militia General, who, by the way, had his birth in the Azores Islands, but to Moses Gill Cobb, of Boston. Judge Tyler and M. G. Cobb were about forming a law partnership in Stockton. The former had been County Judge of San Joaquin, and having a title, determined that his partner should, for the sake of the firm, enjoy a like dignity. So he introduced him to all Stockton dur- ing the first week after his arrival as ' ' my partner, General Cobb, gentle- men." " Yes, I made him a General," said the Judge to me in 1874. BENCH AND BAR IN CALIFORNIA. 39 After this fashion did Joseph Pendleton Hoge become a "Colonel," and his military creator was a Galena editor, who did the business about 1840. It seems that plain "Mr." is too common a title for a man of fame, even in a Republican-Democratic country. The tendency is to distinguish by some higher style those who have won our special regard. So it is generally accepted all over the Pacific slope that if J. P. Hoge is not a Colonel he ought to be. It seems entirely out of place to say ' 'Mr. ' ' to him, or of him. No Judge on any bench would address the Colonel thus. Imagine Chief Justice Searls saying in open court, ' ' Mr. Hoge, will you state that proposition again !" Colonel Hoge is a native of the great State which has become a new mother of statesmen, and which has been doing so much for the country of late years in the way of supplying it with officeholders. He was born seventy- six years ago, according to our Great Register. He studied law and was admitted to the bar also in Ohio. He received what is called a classical education, graduating from Jefferson College, Pennsylvania. When he was about thirty years old he removed to the Prairie State, settling at Galena and there entering on his profession. He soon became popular and moderately prosperous. An inborn love of politics was his, which has ever since asserted itself, but which was never so strong as to require medical treat- ment. He has not been "discharged cured," becaused he has not needed curing. . He has always desired to be United States Senator, but has never set his heart upon it. The Colonel had not been long in Galena when the Democracy sent him to the Twenty -eighth Congress. In the campaign which preceded jhis election he made many brilliant stump speeches, and took his place among party leaders of the great West. At Washington his was a prominent figure, and he was returned to the Twenty-ninth Congress. His political period was 1843-47, and in the House of Representatives, during his four years of service were these eminent men: Hannibal Hamlin, Robert C. Winthrop, John Quincy Adams, John P. Hale, Hamilton Fish, Washington Hunt, Henry A. Wise, R. Barnwell Rhett, Howell Cobb, Alexander H. Stephens, Lynn Boyd (once Speaker), John W. Jones (once Speaker), Garrett Davis, Andrew Johnson, Cave Johnson, John B. Weller, Robert C. Schenck, Joshua R. Giddings, John Slidell, Robert Dale Owen, Thomas J. Henley (since prominent in California and father of the brilliant advocate, Barclay Henley), John A. McClernand, John Wentworth, Stephen A. Douglas, Jacob Thompson, David Wilmot; E. D. Baker, John A. Dix, Beverly Johnson; while in the Senate during the same period were: Levi Woodbury, Silas Wright, W. L- Dayton, Rufus Choate, James Buchanan, Wm. C. Rives, John J. Crittenden, Thos. H. Benton, Robert J. Walker, John C. Calhoun, Thos. Corwin and Lewis Cass. 4o BENCH AND BAR IN CALIFORNIA. The Congressional Globe discloses that on March 26, 1844, Col. Hoge pre- sented the petition of D. W. Guiteau and fifty-six others, citizens of Stephenson county, Illinois, praying Congress to make appropriations for the immediate improvement of the Missouri and Upper Mississippi Rivers. The chief petitioner was the father of him who was destined to be President Garfield's assassin. On April 3, 1844, ^ e spoke in favor of the bill introduced by him March 6, 1844, directing the sale by the government, of the reseived lead mines of Illinois, Missouri, Iowa and Wisconsin. In this debate he had a tilt with Cave Johnson, of Tennessee, afterwards Postmaster General under Presi- dent Polk. He alluded to Johnson as "the Cerberus of the Treasury," when Cerberus turned upon him and charged him with indulging in ridicule and personalities, which he promptly disclaimed. Johnson ' 'expressed his satis- faction at the explanation of the gentleman," but wanted to know what the gentleman meant by calling him the Cerberus of the Treasury. He continued that he had always gone as far as any man in liberality to settlers. If he had his way, he would not sell an acre of the public domain, but give the soil to those who settled upon it in good faith. He opposed the pending bill because he wanted to keep the lands out of the hands of speculators. He desired to see some other plan adopted for their disposition. Col. Hoge did not reply. The bill was defeated, but on reconsideration was amended so as to make the minimum price of the lands five dollars per acre, and as thus amended passed the House by 92 to 71. But in the Senate, being referred to the Committee on Public Lands, it was there smothered. On December 10, 1844, Colonel Hoge introduced another bill, directing the President of the United States to cause the reserved lead mines of Illinois, Iowa and Wisconsin to be exposed to sale. The bill was referred to]the Com- mittee on Public Lands. This bill shared the fate of its predecessor. At the first session of the Twenty-ninth Congress, Dec. 19, 1845, Colonel Hoge introduced a similar bill, which was referred to the Committee on Public Lands. When the bill came up, June 1, 1846, an amendment making the minimum price ten dollars was offered and rejected, Another amendment making the minimum five dollars was then offered. Colonel Hoge spoke at length against the amendment. He said the settlers could not pay so much, and declared that the lands were chiefly valuable for agricultural purposes. On June 9, 1846, the bill was passed in the House with the five dollar amend- ment. It went to the Senate, and came back with another and longer amend- ment, and the House amended it further and finally passed it, in a shape obnoxious to those who favored the original bill. On January 30, 1846, Colonel Hoge made a powerful and brilliant speech in the House of Representatives, on "The Oregon Question," which so long agitated Congress and the country. He took strong ground in favor of ' 'Fifty- four Forty, or Fight." "I do not like," he said, "the patriotism which BENCH AND BAR IN CALIFORNIA. 4 1 counts the costs, which turns pale and trembles at the consequences ; which hesitates, falters and doubts when great national questions are to be decided, when great national interests are at stake." The question was on the resolu- tion of Stephen A. Douglas, Colonel Hoge's colleague, declaring that a title to any part of the Oregon Territory south of 54 deg. 40 min. of north latitude is not open to compromise so as to surrender any part of said Territory. E. D. Baker, another colleague of Colonel Hoge's, although a Whig and English- born, came out bold and brilliant for "Fifty-four Forty, or Fight." Colonel Hoge's speech, just alluded to, occupied fourteen columns of the Congressional Globe. As everybody knows, we did not get Fifty-four Forty, and we did not fight. The country decreed a change of administration, calling to power a great party, one of whose rallying cries was, "Fifty-four Forty, or Fight;" yet the President of its choice (I do not say it in criticism or censure) sug- gested to the British government a settlement upon the forty-ninth parallel as the dividing line. It is said that Mr. Buchanan, Mr. Polk's Secretary of State, felt bound to make this offer, because it had been made by Mr. Tyler before him. It was declined by Mr. Packenham, the British representative, whereupon Mr. Buchanan withdrew the offer, setting forth in a fine state paper the justice of the claim of the United States to the whole of the north- west Territory. Subsequently, the British government expressed its readiness to accept the forty-ninth parallel as the dividing line, if the offer of settle- ment were so modified as to secure to Great Britian the whole of Vancouver Island. This it announced as its ultimatum. President Polk submitted this proposition to the United States Senate, which advised its acceptance, and it was accepted. In June, 1846, a treaty was signed between the two govern- ments, declaring the forty-ninth parallel to be the dividing line. And thus was surrendered the country's claim to a vast region which it had, with loud acclaim, declared its readiness to fight for ; an area as great in extent from north to south as that of the State of Oregon added to one-half of Washington Territory. The famous "Wilmot Proviso" came before Congress while Colonel Hoge was a member of the lower House, and he voted for it. He has been censured therefor by many of his party. Owing to the subsequent events it has been a very long while since his vote on this measure has been criticised however. The ' 'Wilmot Proviso' ' was one of the entering wedges which split the old Democratic party in two. On August 8, 1848, while the House was considering the bill to place $3,000,000 in the hands of President Polk, to negotiate a peace with Mexico, Mr. David Wilmot, of Pennsylvania, a Democrat, but a Free Soiler, offered his celebrated amendment: "provided, that, as an express and fundamental condition to the acquisition of any terri- tory from the Republic of Mexico by the United States, by virtue of any 42 BENCH AND BAR IN CALIFORNIA. treaty which may be negotiated between them, and to the use' by the execu- tive of the moneys herein appropriated, neither slavery nor involuntary servitude shall ever exist in any part of said territory, except for crime, whereof the party shall first be duly convicted." This was adopted in the House by a good majority, every Northern man voting for it, except two of Colonel Hbge's colleagues, Stephen A. Douglas andjno. A. McClernand. It was being debated in the Senate when the hour arrived for the final adjournment of the session. When Congress next met, Mr. Wilmot again offered his proposition, and, after a long and heated struggle, which spread excitement and alarm throughout the country, the House again adopted it, and again it went to the Senate. The Senate now struck out the Wilmot Proviso from the $3,000,000 bill just mentioned and sent the bill back to the House. The House, in Committee of the Whole, March 3, 1847, again tacked on the proviso by a vote of 90 to 80. But, strange to say, right afterwards, in the HoUse, after the report of the Committee of the Whole, the previous question being ordered, and recruits summoned, the proviso was defeated by 102 to 97. Colonel Hoge did not vote on this motion. Mr. Wilmot then moved to lay the bill on the table. This was negatived — ayes 87, noes 114. The bill then passed without the Wilmot proviso — ayes 115, noes 81, Hoge voting with the Free Soilers in the negative. Allen G. Thurman, of Ohio, Demo- crat, voted for the Free Soil proviso in Committee of the Whole and in the House, but when the House rejected it he voted for the Three Million bill, with the proviso left off. It is a curious fact that, while Colonel Hoge, who has through thick and thin, steadfastly to date preserved his allegiance to the Demo- cratic party, voted for this celebrated proposition, it was yet opposed by Stephen A. Douglas, General John A. McClernand and even Daniel Webster. At the close of the second session of the Twenty-ninth Congress, in 1846, Colonel Hoge resumed law practice at Galena. He had kept his office open while in public life, and during his second term in Congress had formed a partnership with Mr. Samuel M. Wilson, who removed from Ohio to take charge of his business. The firm of Hoge and Wilson practiced in Galena until 1853, when the two partners came to San Francisco in company and continued their business association here until 1864, when they "parted friends," always to remain such. Colonel Hoge's life in California has been a very active one, politically and professionally. He has been conspicuous in State conventions, and was Mr. Casserly's chief opponent when that gentleman was elected to the United States Senate in 1869. He is the acknowledged sage of his party. He was President of the Constitutional Convention of 1878, and also pre- BENCH AND BAR IN CALIFORNIA. 43 sided over the body of Fifteen Freeholders of San Francisco, which prepared the defeated charter of 1879. In his profession the Colonel has been eminently successful, having amassed a fortune of $100,000. In 1880 I found by consulting the Supreme Court reports, that, either by himself or in connection with his long-time partner, S. M. Wilson, he had appeared in the Supreme Court of this State oftener than an3 r other member of the bar, with four exceptions. In arguing a cause, Colonel Hoge is always animated, his countenance full of expression and his eyes full of speech. His ideas are expressed with wonderful clearness. He argues a law question like a master. Bench and bar go to him for instruction. He is restive, however, in argument. He doesn't like to be interrupted by counsel or even by the court. In the matter of business location, this veteran has shown rare conserva- tism : he still looks out to the south and west from the same sunny offices in Montgomery Block where he has prepared his briefs for thirty-four years ! In personal appearance he is striking. Only his gray hairs tell of his age. He is very lively in his movements. So also, his conversation is viva- cious, and readily turns into a channel of play. Considering his age, his alertness of mind and body are remarkable. I must tell a story of the Colonel before I part with him. If it is not true, it is yet perfectly harmless, and I get it from a warm admirer of his. The Colonel, ever since his arrival in California, and for some years previous thereto, has been distinguished for his habitual neatness of dress and his absolute purity of linen. It was not always thus, they say. During the first years of his practice among the rough miners of Galena, he is represented to have been very loose and careless in this respect. It chanced that, about the year 1843, he visited Philadelphia, where he heard a legal argument by that advocate of national renown, David Paul Brown. Brown was very graceful and impressive in his delivery, and always studiously faultless in his attire. Some friends who had accompanied Colonel Hoge into court asked him, as they left the chamber, what he thought of the great lawyer's effort. The Colonel replied that he could make a better speech himself. There seemed to be something on his mind, but he said nothing more. Upon his return to Galena a striking change was observed in his exterior, and ever since then he has been one of the best dressed of men. I will close this chapter with an incident which illustrates the Colonel's love of fun : In the Supreme Court, in December, 1876, while an argument was being addressed to the bench, Colonel Hoge, Judge Cope, and another leading law- yer were carrying on a conversation in a subdued tone, but not subdued enough, and Chief Justice William T. Wallace concluded to subdue it altogether. Not caring to openly rebuke such eminent counsel, one of whom 44 BENCH AND BAR IN CALIFORNIA. had once occupied a seat on that very bench, the Chief Justice beckoned to the bailiff and whispered something in the ear of that functionary, who then softly approached the talking trio, and in his turn whispered to each : "Judge Wallace says stop talking. ' ' Colonel Hoge, who was the last to hear the gentle command, straightened up in his chair, motioned the bailiff back and said to him, in a tone just loud enough to be heard by his fellow culprits : "You tell Chief Justice Wallace to ." The bailiff reddened up, glanced hastily at the Chief Justice, then, with a bewildered expression, moved to his regular station. There, for some time, he seemed lost in deep thought. Suddenly he brightened, and turned his eyes toward Colonel Hoge, with a look which plainly said : "May be you think I won't tell Judge Wal- lace ?" Did he ? I never heard ; but I hope he didn't. CHAPTER V. Samuel M. Wilson— Association With Joseph P. Hoge in Illinois and California— A Broad Practice and Princely Revenue— The Broderick Will Case— The Nitro-Glycerine Explo- sion, 1866 — The Mining Dehris Litigation — A Striking Instance of the Law's Delay— The Conflict Between State and United States Land Patents — A Seat on the Supreme Bench Declined — Meeting the Giants of the Eastern Bar. As I turn to this bar leader, an- observation of Prof. Max Muller recurs. It was in the address on Freedom before the Birmingham and Midland Institute, October 20, 1879: "If there is one among the leaders of English thought, who, by the elevation of his character and the calm composure of his mind, deserved the often misplaced title of 'Serene Highness,' it was, I think, John Stuart Mill." If there is one among the leaders of this bar, who, by the elevation of his character and the calm composure of his mind, deserves this title, it is Samuel Mountford Wilson. In him we behold no meteor of brief career, speeding along its dazzling track, but an orb of massive momen- tum, pursuing with stately motion an orbit well defined. Happily, as Stan- King once said of the sun, ' ' he has no French ambition for display. ' ' In him we see character, " Constant as the northern star, Of whose true, fixed and resting quality There is no fellow in the firmament. ' ' This gentleman was born in Steuben ville, Ohio. When he placed his name on the San Francisco great register, June 2, 1866, he gave his age as 42 years — making him 63 in 1887. When he was four years old his father died. He attended Grove Academy a few years, but never received a college diploma, being compelled to maintain himself from the time he had the physical strength to do so. He read law in the office of General Samuel Stokely, a member of Congress from Ohio, pursuing L,atin and other studies at the same time. After his admission he practiced at the bar in Steubenville a short time, when Colonel J. P. Hoge, who had a good law practice in Galena, Illinois, and who was then in Congress, invited him to Galena and offered him a partnership, which he accepted. This was in 1845. Colonel Hoge was thirteen years older than Mr. Wilson. They had known each other well in Ohio, where Colonel Hoge was also born, and where the Colonel's sister and Mr. Wilson's brother intermarried. While at Galena the District Attorney of the county resigned and Mr. Wilson was 46 BENCH AND BAR IN CALIFORNIA. appointed to fill the vacancy. The. only criminal law business which he ever attended to, devolved upon him during his fragment of a term as District Attorney of Jo Daviess county. He never liked this branch of law practice. Mr. Wilson first met at Galena the lady who became his wife. Having studied for his profession in the oifice of a Congressman, afterwards having effected a business partnership with a Congressman, it very curiously coincided that he should form a matrimonial alliance with the family of another M. C. His wife was a Missouri lady, daughter of John Scott, delegate to Congress from Missouri Territory, and the first Representative to Congress after the admission of Missouri as a State. Messrs. Hoge & Wilson remained in part- nership in Galena until 1853, when they came together to San Francisco, closing their Galena business and continuing their partnership here. I do not recall another instance of such a far translation of an entire law firm at one time. The old Galena firm held together in San Francisco, having offices in Montgomery Block and conducting a large business until in 1864, when it was ' 'dissolved by mutual consent, ' ' over eighteen years after its formation. The old law partners have since steadily continued their friendship for each other, and each frequently takes counsel of the other in the conduct of impor- tant cases. Upon the separation of Messrs. Hoge and Wilson the latter formed a partnership with his brother, David S. Wilson, which continued about one year and a half, when David S. removed to Iowa, where he was afterwards elected a Circuit Judge. In 1866, Mr. A. P. Crittenden joined Mr. Wilson, and the firm of Wilson & Crittenden continued until the death of Mr. Critten- den in 1870. From 1870 to 1874 Mr. Wilson had no partner, but retained Judge W. W. Cope to assist him in his business. In January 1874, Mr. Wil- son and his second son, Russell J. Wilson, became associated in business, and the firm of Wilson & Wilson has since continued without change, other than the admission of another son, M. S. Wilson. Russell J. Wilson had been admitted to the bar by the California Supreme Court in October, 1873, and had not long before returned from Knox county, Ohio, a graduate of Kenyon College, from which college had graduated Judge David Davis, Judge Stanley Matthews, Henry Winter Davis, the peerless orator of Maryland, and many other men since prominent in the national councils. Mr. Wilson has a larger income from his regular practice than is enjoyed by any other lawyer in California. He is attorney for a score of millionaires ; also, for many of our most prosperous mining companies; for the Safe Deposit Company; for Wells, Fargo & Co., which corporation, by the way, is organized under the laws of Colorado; also, for the Bank of California, the original articles of incorporation of which he drew when the institution was located at the southwesterly corner of Washington and Battery streets, in BENCH AND BAR IN CALIFORNIA. 47 1864. He also frequently appears as attorney for the Central Pacific Railroad Company. Mr. Wilson is a methodical, patient, tireless worker and investigator. With the aid of his sons he wields his immense practice without difficulty. While perfectly unassuming, he has the fullest confidence in his capacity, as may be inferred by his opposing, single-handed, as he has done, the giants of the eastern bar before the most august bench in the land. He equips himself in complete armor for every encounter. His library is well selected, and in utility and number of volumes is not exceeded by any private law library in the State. He has what is called a legal mind — a well balanced mind. He is a lawyer clear through, and makes law his constant study. He loves the science. He has a genius for work. His habits are excellent — his life blameless. He has a reflective cast of mind, a fine judgment, a vast fund of common sense. His success, therefore, is not at all surprising. Success was his destiny. I have heard some good lawyers assert that Mr. Wilson was at his best before a jury, while others say his place is before the court. The truth is, he is good in either position, but not being a magnetic or eloquent speaker his jury addresses are not powerful appeals. His delivery is quiet and deliberate, his speech plain. He very rarely touches ornament, and, while always earnest does not often warm up. Simple in his tastes and dress, free from haughtiness and affectation, he yet possesses a more magisterial air than any bar leader here. He enjoys the unqualified respect of the entire bench and bar. Both in and out of court you recognize in him the thoughtful counselor and well bred gentleman. And the high esteem in which he is held by the profession is due not more to his legal ability than to the uniform gentility which marks his treatment of his brethren. It would be tedious to briefly glance at one-half of the more important causes in which Mr. Wilson has appeared at this bar. In the mortgage tax cases, the Beale street cases, the New City Hall case, the case of Sill vs. Reese, the Black will contest, and many others which excited deep interest in the public mind, he was conspicuous, and generally led the successful side. The case of Cunningham vs. Ashley et. al. , tried here at an early day, involved the title to the lot of land on which Piatt's Hall stands. The plaintiff was D. O. Mills' father-in-law, who built and owned the Nucleus Building. The defendants were Delos R. Ashley and Jesse D. Carr, the latter now a wealthy farmer in Monterey county, and Ashley afterwards becoming State Treasurer of California and Member of Congress from Nevada. Mr. Wilson was for Cunningham, and prevailed over John B. Felton, D. P. Barstow and John Garber. The case of Porter vs. Woodward, et. al. was brought to recover a part of Woodward's Gardens and adjacent grounds of large area. There were many defendants and some twenty-five attorneys appeared on their 48 BENCH AND BAR IN CALIFORNIA. behalf, but the defense was chiefly conducted by Messrs. Wilson and J. R. Jarboe. The plaintiffs attorneys were William H. Patterson and B. S. Brooks. The case was ably contested and was taken to the Supreme Court. The defendants were successful in the District Court and on appeal. Mr. Wilson has done well to eschew criminal practice. In the line ot civil business, he keeps farther from the people, his name is less before the public eye, he is seen less, but he is felt more. He is not suited to the bustle and excitement of criminal trials. His deliberation and judicial cast of mind, keep him off the stage where guilt and justice meet. He is not strong in appealing to the feelings, the passions. ' ' He has not learned the mystery of awaking Those chorded keys that soothe a sorrow's aching, Giving the dumb heart voice, that else were breaking. ' ' But in the wide domain, which he has been so industriously exploring for so many years, his capacity, for investigation, his powers of argument, his poise of judgment, have found a congenial field. They impress his mind upon the jurisprudence of the State. In court Mr. Wilson is of easy bearing, but not courtly. He keeps full notes and never, mistakes evidence. He uses his books with much discrimination. His authorities are in point. He talks forcibly, but not finely. He is cool, clear, eminently practical, concise, cogent, logical. His style is strictly argumentative; there is -no hurry, no fretfulness, no impatience. Having improved his office hours he enters the court-room ' ' strong in the assured sense of present skill, in the calm knowl- edge that the hours will bear good fruit. ' ' In our Superior Court, Department 2, 1880 — Calhoun Benham appearing for plaintiff, Mr. Wilson for defendant — a jury being impaneled, Benham wanted to amend his complaint and proceed with the trial. Mr. Wilson objected, and insisted that if the amendment was allowed the trial should be postponed. ' ' I prepare my cases, ' ' he said. ' ' I have analyzed this com- plaint. I know just what the plaintiff will be permitted to prove under each count (holding up a list of his authorities). If this amendment is allowed I may desire to demur; or I may move to strike out; or I may answer it; I prepare my cases, so that when I come into court . I may be able to assist the court and jury. ' ' John M. Burnett (sotto voce)— And to beat the other side. The oldest short-hand reporter in California, the late A. J. Marsh, gave it as his opinion that Mr. Wilson was the most subtle cross-examiner he ever heard, except Durant, of Boston, a contemporary of Choate. Speaking of ■Choate, who was never properly reported, the reporter whom I have just named, stated that there were a dozen short-hand gentlemen in San Fran- cisco who could report Choate' s speeches verbatim. This he said in 1881. Mr. Wilson has appeared in the Supreme Court ot the United States BENCH AND BAR IN CALIFORNIA. 49 more frequently than any member of the California bar. One of the most interesting of the causes which took Mr. "Wilson to the highest tribunal of the nation was the Broderick will case. Broderick, United States Senator from California, shot in a duel by Judge David S. Terry, September 12, 1859, died four daj's later, as Harry Byrne afterwards died, without wife, parents, children, brother or sister. A paper, purporting to be the last will of Broderick, dated at New York City, January 2, 1859, was admitted to pro- bate in our Probate Court, October 8, i860. Under his alleged will John A. McGlynn received $10,000, and the remainder of the estate went to George Wilkes, of New York City. McGlynn, Wilkes and A. J. Butler were named executors. The estate, consisting chiefly of land now in the heart of San Francisco, was sold to several hundred purchasers in 1861, under order of court. A little over eight years elapsed, when, on the 16th of December, 1869, a suit in equity was instituted in, the United States Circuit Court in San Francisco to set aside the probate of Broderick's will and have the same declared a forgery, and to recover the estate. The complainants were John Kieley and Mary, his wife, George Wilson, and Ann, his wife, and Ellen Uynch, all residents of Sydney, New South Wales, The bill alleged that the three women named were daughters of Catherine, deceased sister of Broderick's father, Thomas, and were the only heirs at law. The com- plainants excused their long delay in asserting their rights by declaring that they lived in a remote and secluded region in Australia; that they were illiterate and did not hear of Broderick's death until eight years after the probate of his alleged will. The high position of Broderick, the tragedy of his death, his great popularity at the time, and the extensive possessions he left behind him, drew wide attention to this contest in the Circuit Court. The history of this con- troversy is replete with interesting facts and incidents. Mr. Wilson appeared with other leading counsel in support of the genuineness of the will, 'and interposed a demurrer, which was sustained, and the complainant's bill was dismissed. The complainants appealed, securing the services of I. T. Williams, who made an oral argument, and S. H. Phillips, who filed a brief. In the Supreme Court of the United States Mr. Wilson was alone for the defendants. He contended that a court of equity had no jurisdiction of the subject matter of the suit, the same being vested exclusively in the San Francisco Probate Court, and that the action was barred by the several California statutes of limitations. He made other points, but upon these just stated he obtained an affirmation of the decree of the Circuit Court. Considering the interests involved in this controversy, and the large number of persons affected, Mr. Wilson must have received a princely fee. The case of Meeks vs. Olpherts, Sharon et. al, in which Mr. Wilson 5 deceased. City and County of San Francisco, ss. Matilda Heron Byrne, at present in aforesaid city and county, being first duly sworn, says: I deny that I have a considerable quantity of, or any quantity of, or any real or personal estate, either in the State of New York or elsewhere, sufficient for my support, or held by me in common with Robert Stoepel, or held by» Robert Stoepel for my benefit. I have not a dollar in the world, either in real or personal estate, nor is there any rela- tion under heaven between Robert Stoepel and me, not even our only living child, the posession of which I have obtained through her father's proclaiming her illegitimacy. Since the dissolving of my marriage with Robert Stoepel, he has refused to pay one dollar towards the support of either his child or me. When my sad illness, caused by suffering through the overwhelming calamity of my domestic wreck, between those tw o men, Henry H. Byrne and Robert Stoepel, overcame me, Robert Stoepel refused to pay my doctor's bill or that of his child; refused to clothe or pay for the education of his child. What, then, can be meant by his now holding property for my benefit, I am at a loss to know. Before my leaving New York for San Francisco, Mr. Stoepel sent a mes- senger to me offering to settle on my child a large sum of money, if I would sell all right and claim to her. This when I was on the bed where I had lain an almost con- firmed invalid for fifteen months, and whence I arose to recover, by act of habeas corpus, my little daughter, who was being kidnapped from me to be transported to an obscure and remote place in the Pyrenees. So much for the estate now being held for my benefit. As to the suit alleged to have been commenced by me in 1869 against Robert Stoe- pel, if such suit was, or is, in existence, I have no recollection or knowledge of it what- ever. About eighteen years ago I was married to Mr. Henry H. Byrne, with the agree- ment that I should remain on the stage for two years, with the hope, on my part, that I might achieve as great a success in the East as I had in San Francisco. After my return from Europe where I dramatized "Camille," studied under the best masters, and pur- chased a complete theatrical wardrobe, there was not one prominent manager who would open his doors to me. It was failure after failure. The large amount of money I spent in Europe, and what I sunk in San Francisco under bad advice, had now impoverished me. To Mr. Byrne I faithfully depicted every disaster. The two years passed; he came, as by promise, and, as I thought, to claim me. 62 BENCH AND BAR IN CALIFORNIA. I was in Philadelphia, in the bosom of my family. Mr. Byrne remained three weeks in New York, without even writing to me. Even this I forgave. At this time an engagement in Pittsburg was opened to me, whither he at length followed me, accompanied by two members of my family. Inquiring why he so neglected me, he answered he had been led astray by some California friends. This, Ialso forgave. During the four days he remained with me, we discussed all my professional calamities, wherein I told him my sorrowful conviction that I never would be the great artist my soul had so long hungered to become, and that now I was perfectly resigned to follow him and his fortunes. To all of this the dear gentleman most evidently thought a great deal, but very little answered. The last morning came. I was offered an engagement in Buffalo, and I asked, "Must I go to Buffalo, or may I go with you?" To which he answered: "Go to Buffalo." Then and there we parted; I to Buffalo; he to his friends. One other year passed, -when Mr. Byrne's letters came rarely. At last they ceased entirely. I could not believe he had failed to write to me, and so . I mentioned it to my brother, Alexander Heron, President of Heron's Line of Steamships from Philadelphia to Charleston and Savannah, but my brother said, "Tilly, if you had one spark of your mother's pride in you, you would never speak to that man again; he has deserted you." This was a bitter blow to ► the young actress. A third year had passed since our marriage, since which I never received one dollar from him — not even a little token. After my first shock was over, I wrote to Mr. Byrne calmly, and, under the advice of my brother, asked for a divorce. An immediate reply came to me, in which he used these exact words: "Place ,this letter in the hands of a lawyer, and it will make you as free as the hour you were born." I placed the letter in the hands of a lawyer, John Hopper, of no Broadway, New York, and told him to procure me a divorce. About this time I had begun slowly to succeed in my profession, and it was not surprising that a young girl should have flatterers and snares about her. Often, rehearsing "Camile," I envied the humblest woman in the theater who 'had a husband's protection. In New Orleans I met the conductor of our orchestra, who was polite, respectful and kind to me. We met again in New York, where he presented his parents, sisters and brothers to me; also, his brother-in-law, Vincent Wallace, the composer. They hinted a marriage. I told them I was poor. Robert Stoepel answered: "Wealth is impertinent: we will be poor together; I love you and will labor for ybu; it is your love I would marry, not your purse." I asked for time. Time passed and I played Camille in Wallack's Theater for ioo nights, ' achieving a great success. In that triumphant hour I did not forget the poor musician. After a successful trip all over the Union, I sought John Hopper, who told me my case was all right, and that I was a free woman. An inexperienced girl, how could I then know the world or its laws ? And I was away from my only friend, my brother. John Hopper urged my mar- riage, assured me I was free to marry, and engaged his brother-in-law, Rev. Mr. Gallordet, to marry Mr. Stoepel and myself in St. Ann's Church, where, in the presence of a large number of friends, Mr. Hopper and his wife Rosalie placed Robert Stoepel's hand and mine together before the altar. Years passed, honor accompanied, and pros- perity attended our mutual industry. Certain obligations called me to San Francisco. I left our happy home, where I left my only child and her father, and arrived here. The day after my arrival Judge called on me, and informed me that through an old friend he came on behalf of his client, Mr. Byrne, relative to a divorce which Mr. Byrne claimed. I was naturally annoyed, and requested to see Mr. Byrne in person, which ,the j udge positively and imperatively refused. Worn by a long voyage, away from friends and home, in a strange land, I said it was not fair to bring me in such light before the BENCH AND BAR IN CALIFORNIA. 63 public, to which replied that the matter could be settled up in the country by parties there who would be operated upon to keep it secret. I answered : I did not know that that was the way in which justice was dispensed in California, and asked on what ground could Mr. Byrne make so outrageous a request. Whereupon, Mr. read to me a certain paper, which I could not comprehend until he came to the word "adultery," when I told him to proceed no further. He then substituted for the odious word ' ' desertion. ' ' Again I entreated an interview with Mr. Byrne, and again was denied, the judge adding, "Have you no pride? I tell you if Harry was weak enough to see you, I, as his counsel would forbid it. The man despises you. " Next day I met Harry on my way to rehearsal. He turned ashy pale, and exclaimed, "Why, Tilly ! " I asked what he meant by sending every day to annoy me in the midst of my labor. He denied all knowledge of the affair, and an interview between us was decided upon. Thereafter we had a long, serious and affecting interview, explanation and recon- ciliation. After that he came constantly to see me during my stay in San Francisco. During our long conversations Mr. Byrne's constant theme was my being his wife again. He forbade ever to mention divorce to me. But the industrious was not dis- heartened, for he reminded me that after I was two months married to Harry, the latter had sent me $1,000 and that it would be a graceful ±hing to repay it. Well, I said, since you are so zealous in your friend's behalf, I will pay it. Sell that water lot, on which you insist he has been paying taxes, while I can prove my brother-in-law has been really paying them. Sell the lot — pay your client principal, taxes and interest on the same. The lot was sold for $2,300. The purchaser refused to lay down the money until I signed it by my real name in the presence of Dr. Harris, Judge Freelon and some others. I took the pen and wrote " Matilda Heron, " then, hesitating, I said: What else? and both Harry and Freelon answered aloud: "Byrne," which, to the best of my knowledge, I then signed. In our next interview I asked Harry what on earth that signature meant, and he answered : "You are not Stoepel's wife, but mine ; your property is mine ; that beautiful home of yours is mine ; you are mine ; your very child is mine ; you are my wife. Your divorce from me was either illegially obtained or fraudulent." This intelligence pained me exceedingly. Just then I received a dispatch of my brother's death. I was obliged, even in my double affliction, to perform three nights. At last I broke down ill, and all that tender respect and love could do, Harry Byrne did for me. I had two physicians, but he sent his own. He sent Mr . Freelon to assure me that, if anything serious should arise from my illness, he would send a faithful messen- ger to accompany me home. I got well and traveled up the country. Not a city I performed in, scarcely a day passed, but brought a letter from Mr. Byrne. When it became necessary for me to go East, he became extremely melancholy, even to weak- ness. I could only arouse 'him by expressing the hope that I would return to him. He planned that we should go abroad for some years. I told him I would go home and state my position frankly to Mr. Stoepel. In parting with me he exhibited great sensibility and deep feeling. On my return to New York I immediately and frankly told Mr. Stoepel all, without a particle of reserve. Then arose a question of property between us. Mr. Stoepel saying : "Then if you should die Byrne can claim all." I answered : ' ' These were Mr. Byrne's exact words. ' ' From that hour strife and confusion surrounded me. Between two husbands — my brother dead, a daughter's honor and my own involved — I knew not whither to turn. I made a retreat to the convent to compose myself, leav- ing which I was thrust into the Supreme Court by Robert Stoepel vs. Matilda Heron Byrne, to compel me to consent to a division of property as partners in business. I did not wish to divide our property, but to keep it together for the child, so I engaged Mr. 64 BENCH AND BAR IN CALIFORNIA. James T. Brady to defend the case. Unfortunately that gentleman in a short time died. On requesting his partner to resume the case that gentleman said : "Matilda, you will have trouble with Stoepel, for I have had a communication from Mr . Byrne who says you are his wife, that your divorce from him was not legal." Weary of publicity, dis- heartened, desperate, I left that office, and made over to Robert Stoepel every piece of property and every dollar I possessed on earth. From that time, too depressed to act, I was supporting myself and my child by my education, when two years ago I was prostrated by severe fever, and kept my room and bed for fifteen months . I was con- valescent, and was sent in midwinter to the seashore, where the news of Mr. Byrne's death reached me ; also, telegrams and letters telling me to, come to San Francisco. I have come to defend my honor and my rights. From the investigations made by my lawyer in New York at the time of the litigation between Robert Stoepel and myself, I became fully satisfied, and do now firmly believe, there never was a divorce between Henry H. Byrne and myself. , [Signed] Matilda Heron Byrne. Subscribed and sworn to this 27th day of August, A. D. 1872, before me, [Seal] Samuel Hermann, Notary Public. There was a compromise effected between Mr. Carpentier, the executor and legatee before named, and Matilda Heron. Mr. Carpentier's final account shows that Matilda Heron received $ 1,000. The fact is, I have it on good authority, she actually received $5,000. The Mary Cross, to whom Mr. Byrne- left $5,000, was a young woman from Philadelphia, who learned the millinery art in the same institution with Matilda Heron, through whom she became acquainted with Mr. Byrne. She was Mr. Byrne's housekeeper in one of his houses, corner of Howard and Twelfth streets, and in his sickness showed him unremitting attention. He really was indebted to her for many acts of kindness. He was not married, and in periods of sickness and, gloom, consequent upon excess of conviviality, he invariably sought her house and found hospitable welcome. It has always been an enigma to the bar and the community that Byrne left his estate to a man who already had ample means and was not of his blood. This may clear the mystery: Byrne, while not a money worshiper,' and while numbering among his ardent friends and admirers thousands ot people in the humble walks of life, yet looked up to moneyed men, and cherished unfeigned regard for those who had displayed the ability to accumulate wealth. He sometimes repeated an expression which he attri- buted to his father, that ' ' a poor man could not be honest. ' ' He had no near relatives to survive him. He did not want his estate squandered, and felt that it would not be appreciated if left to any impecunious companions. Among his immediate personal friends was one who knew how to make money and how to take care of it. Carpentier and Byrne, moreover, had known each other in the East. When Byrne, before the close of his second term as District Attorney, in 1854, went to New York on a visit, he left his BENCH AND BAR IN CALIFORNIA. 65 office in charge of Carpentier. The two men were both bachelors (Byrne practically, at any rate), and this tended to knit them closer together. Just as Byrne was about to pass into decline, and softening of the brain seemed approaching (in 1871) he told a friend that he would like to spend some years in Europe, but did not have the ready means. I^ike many other well-to-do men he sometimes felt that he was poor. He said he did not want to mortgage his property. This friend mentioned the matter to Mr. Carpen- tier, who promptly said that Mr. Byrne need not let money matters trouble him an instant— that he, Carpentier, would supply him with all funds required. This was communicated to Mr. Byrne before his will was drawn. Shortly afterwards Mr. Byrne was ill and on the bed from which he never arose. Mr. Carpentier visited him and seeing his serious condition, staid by his bedside day after day and night after night until the end came. It seems, then, that although Byrne left his estate to one who did not need it, although he could certainly have done more good with it, he yet bequeathed it to one of whom he could say: "He was my friend, faithful and just to me." CHAPTER VII. Lorenzo Sawyei— With McDougall in Illinois— In the El Dorado Mines in 1850— The- Early Bar of Nevada County— A Remarkable Murder Case— Honors in San Francisco— A Long Tenure on the Bench— Judicial View of the Chinese Question— The Authorship of the Sole Trader Act— The Principles of Masonry— First! Meeting with the Eccentric Lockwood- References to A. A. Sargent, Judge J. B. Crockett, Jno. R. McConnell, E. W. Roberts, E. V. W. Ellis, Stanton Buckner, C. H. S. Williams, Roderick N. Morri- son, Frank M. Pixley and Tiburcio Parrott. I/Orenzo Sawyer holds for life the most exalted judicial station in Califor- nia, and his career on the bench has already been longer than any other in the annals of the State, except those of Judges Hoffman and Field. A quiet, unas- suming man, his forensic record is yet full of interest, and to those who may have the idea that his life has been uneventful, I promise a pleasant surprise. He was born in Jefferson County, New York, May 23, 1820. (Judge S. C. Hastings was born in the same county, six years earlier). L,ike the Shafters, who were born in Vermont, four and eight years before him, he had the blessing of a noble parentage, and, like them, reared in the home of honesty, simplicity, sobriety and frugality, he heeded every parental counsel, and has led a life of exceptional beauty and purity. His father has been dead some years but his mother lingered until passed ninety-two, dying on June 9, 1886, at Belvidere, Illinois. Their golden wedding was celebrated at that place, February n, 1869, when there was a happy reunion of their descendants and relatives. On that occasion the Hon. Joel Swain Sawyer, of Minnesota, the next eldest son, delivered to the aged couple an affecting memorial address, which closed with these words: ' 'To the principles of morality, virtue and Gospel truth, early instilled into their minds, enforced by your examples, do your children owe whatever of good may appear in their characters, whatever of success they may obtain in life, whatever of public or private, consideration and esteem they may inspire; and as a fitting return for your care, your integrity, and the other Christian graces illustrated by your daily lives, you now realize the assurance of the sacred proverbialist; your children shall arise and pronounce you blessed — as we do this day." At this "wedding" a hymn was sung which had been sung at the BENCH AND BAR IN CALIFORNIA. 67 marriage fifty years before, to the same tune, Exhortation, and from the same books. Lorenzo Sawyer was born on a farm, and lived there until his sixteenth year. In winter he attended the district school; in summer he helped to bear the harvest home. The neighborhood contained a large and excellent library, of which he availed himself at night and on Sundays. After passing a year at the high school at Watertown, New York, called the Black River Institute, he went with his father and family to Pennsylvania, where a new farm was located and cleared. The next eight years were spent in teach- ing school in New York and Ohio, and in reading law, which profession he had decided to follow before he first left his native State. The first law office he entered was that of Hon. Gustavus Swan, who then led the Ohio bar in land controversies. Judge Swan soon retired from practice; and Lorenzo Sawyer then was received into the office of Noah H. Swayne, afterwards a Justice of the United States Supreme Court. There he had the benefit of excellent instruction until his admission to the bar in 1846. He then went to Chicago, and passed a year in the office of James A. McDougall, who was three years his senior, and who was then Attorney General of the State, and who afterwards represented California in the upper house of Congress. He then went to Wisconsin, settling in a little town which bore the name of his native county, and, forming a partnership with John E. Holmes, then Lieutenant Governor, commenced the practice of law. The old Whig party is dead only in name. Its principles are interwoven with the country's life. Daniel Webster and Henry Clay — these were the men whom Lorenzo Sawyer followed in politics. He had pitched his tent, however, in a locality not very congenial to Whig ideas. His industry, good habits and strong common sense showed that he was the right man, but he was not yet in the right place. He built up a lucrative law practice for that locality but he was ambitious, and his chance for political preferment in that region was. not flattering. So, when the cry of "Eureka !" echoed around the world, he was glad to respond. In July, 1850, he arrived in California, having crossed the plains with a company of young men from Wisconsin. It was a journey of seventy- two days — ' ' an unprecedently short trip ' ' they called it. Mr. Sawyer sent to the Ohio Observer many incidents of this trip, and his articles were copied by several Western journals, furnishing valuable data to emigrants who followed him. El Dorado ! Beautiful name, most appropriate for a county of California. In that county Mr. Sawyer first rested after crossing the plains. Dike Judge Bennett, immediately on his arrival he went to work in the mines to get a stake. Finding that his profession presented a golden opportunity, he went to Sacramento and commenced law practice. He soon removed to Nevada 68 BENCH AND BAR IN CALIFORNIA. City. His career there was comparatively short, but was cast in an eventful period, and the history of the bar of Nevada county, which was written by the Hon. A. A. Sargent, makes Lorenzo Sawyer one of the most prominent figures of that day. His library at first consisted of eleven volumes, brought from the Prairie State. His brief life at Nevada was broken by a visit to San Francisco, where he had decided to locate permanently. Disaster here came upon him. The honors this people had in store for him were unrevealed, and, being twice burned out of his office, he returned to his mountain town, where he was destined to win great local fame. In 1852 he was counsel for the defense in one of the strangest criminal cases on record. A woman of the world, "Old Harriet, " kept a saloon on Broad street. A mountain ' stream, Deer creek, dashed by in the rear of her house — right through the heart of the town. It was an early day, and she had a business which "paid." At the foot of the street there had been a bridge, which was the highway of communication between the two divisions of the settlement. On Little Deer Creek, a mile off, on the other side of the main creek, was the mining camp of Pat Berry, a prosperous miner. Right across the street from " Harriet's " there was, perhaps, the liveliest dance- house to be found in " the mines." It was nightly visited by men of all con- ditions, who made night, and sometimes morning, " hideous " with their revelry. Among these festive arrivals were many who came from across the creek — from mining camps, here, thefe and everywhere. During one rainy season a freshet broke down the bridge across the raging creek, but a tree was felled so as to afford a passage to footmen. At the time referred to the creek was a turbulent torrent, and went roaring and dashing and crashing through the town, cutting it in two, with only the fallen tree for a footway between the two sections. On one Saturday Pat Berry came to town. He had made money during the week, and brought it with him. Arrived in town he bought an entire new outfit of outer and under- clothing. After dinner he went to the dance-house, and spent an hour. Then he crossed the street to "Old Harriet's." He was seen at the latter place at a late hour. But thereafter he was never seen alive. A cry of " murder ! " rang out upon the air that night, but not being repeated those whom it aroused gave it little thought. But where was Pat Berry ? His nude body was found in an eddy of the creek, about six miles below, a few days afterward. A trifling scratch was upon the abdomen, buj: on the forehead was a large, extravasated wound, . which, according to medical testimony, must have been inflicted upon the victim while he was still alive. On the following day Harriet was accused of the crime of murder and arrested — also a stalwart Cornishman, her " fighting- inan, ' ' so-called. In those days gold dust, instead of stamped money, was the medium of exchange. Everybody who was in business kept a pair of scales BENCH AND BAK IN CALIFORNIA. 69 to weigh and determine the value of gold dust. Harriet had such a pair of scales ; and there was a large iron weight used with it, which, the prosecution said, was the-instrument of the death of Pat Berry. On the trial of the woman and her fellow, John R. McConnell, a bright but eccentric and erratic leader of our bar, who died in Colorado in 1879, prosecuted, and Lorenzo Sawyer defended. Justice John Anderson, brother of one of the earliest and ablest of California lawyers, and who, thirty years later was a Justice of the Peace in the same old town, heard the preliminary examination of the case. This consumed two or three days. It was estab- lished by the prosecution that Berry had money upon his person when he visited Nevada City on that , fatal night. His movements were traced ; the time and manner of the recovery of his body were shown ; that the wound on his head was given in life was made clear, and it was also proved that this wound was inflicted with a round, blunt weapon. The theory of the prosecution was that Berry had been murdered for his money in the brothel of Harriet by the latter and her " friend," then stripped of his clothing, which, as stated, was all new, and thrown into the convenient creek at the rear of the house. Against so plausible a theory Lorenzo Sawyer had to contend. It is to be regretted, from a strictly legal standpoint, that Justice Anderson did not decide this case as it was at first submitted to him. It is to be regretted that the highest tribunal of our country had not been called upon to pass on this very case. It would have furnished a fine test of the certainty of human judg- ment. It -would be decidedly interesting to know what would have been the issue of that trial, if the evidence mentioned below had not been elicited. Judge Sawyer's theory for the defense was that Berry had started about midnight from the woman's house for home ; that he was heavy with alcohol when he set forth upon his dark, homeward journey ; that in crossing the creek he fell off the narrow log ; and that, in falling, his head struck upon a rock — there were plenty of rocks in that vicinity — and thence received the wound from which he died some minutes later, thus accounting for the extravasation of blood. The missing clothes were a puzzler, but the counsel sought to account for their absence by invoking certain principles of natural philosophy as to the action of the roaring torrent of water, rocks, trees, etc. , in the bed of the stream. Justice John Anderson, did not know what to do with the case as sub- mitted to him. He took it under advisement for a week. It so happened, that, during the week, at midday in view of several wit- nesses, two men started across the creek aforesaid — to walk the famous log in company. In the middle of the riotous stream one of them pitched off. He was never seen alive. His companion and others — for this was in the day- time — ran dawn the banks of the creek, and, some miles below, found his 70 BENCH AND BAR IN CALIFORNIA. dead body in the very same eddy in which Pat Berry's body had been found a few days before. An extravasated wound was found upon the head, just like that which was on the head of Pat Berry. There were no other wounds oil the body, but all the clothes were stripped off except the undershirt, which; turned inside out, and drawn over his head, was clasped around the wrist, and held by a single button. This last mishap coming to Judge "Sawyer's knowledge, he moved the court to reopen the case. It was so ordered, and new evidence of the circum- stances just related being submitted, the defendants were discharged. When informed of the circumstances of the second death, ' 'Harriet ' ' lifted her hands and eyes towards heaven and in tones and manner intensely tragic, but with manifest sincerity, exclaimed : ' ' God himself has interposed to save an innocent woman ! ' ' There was tried, in 1851, at Rough and Ready, Nevada county, before E. W. Roberts, Justice of the Peace (since a County Judge and State Senator) a case which involved the possession of a mining claim on Industry Bar, valued at $100,000. It was the case of the period. The parties to the suit were many and prominent, and fully supplied with the sinews of war. Lorenzo Sawyer was leading counsel for the plaintiffs. It was agreed j that the hotel bill, wines, cigars, tobacco, etc. , for both sides, should go into the bill of costs in the case, and be paid by the losing party. After a three days' trial the jury disagreed. A second trial, lasting ten days, resulted in a victory for Judge Sawyer's clients. The bill ol costs, recovered against and paid by the defendants, was $1,992. The hotel bills were probably twice as much more. Among Judge Sawyer's leading cases are Taylor vs. Hargous (4 Cal., 268), and Eddy vs. Simpson (3 Cal., 251). These cases are "leading," not only in the sense that they are important, but that they first established, in this State, the principles therein laid down. In Eddy vs. Simpson, the plaintiffs sued to recover damages for interference with their water rights. One Artemas Rogers was the heavy man of the defendants. He was a very active, positive character, and anticipating the suit, he visited Sawyer at his office to retain him. Sawyer had prevailed against Artemas in a hot legal conflict a few months before, and he remembered it. He now wanted his help. Having stated his case, he asked : "Can you win it ?" "I don't think I can,"- said Sawyer. " B y . sir; you are not the man for me, then," exclaimed Rogers. "I don't think I am," said Sawyer, quietly. Rogers then narrated a chapter from his experience in Sawyer's native State. He said he had once consulted a lawyer in an important cause in that State, who did not think he could win. He thereupon declined to retain him, employed another lawyer, who thought he could win, and he did. BENCH AND BAR IN CALIFORNIA. 7 1 ' ' I had rather be against you than for you in this matter, ' ' said Sawyer. " As you do not want me, you will not object if I accept employment from the other side. I know they will call on me. "Not at all," replied Rogers. "If I do not employ a lawyer, I will not keep him out oi the case. Do what you can for them, and charge a d big fee. But you can't win." Within an hour Sawyer was retained on the other side. The trial soon came off before the District Court. Barbour, the Judge, having recently been elected was disqualified in many cases, and Judge A. C. Monson, of Sacramento, who afterwards became one of the richest men in the State, presided at that term. Judge Monson instructed the jury as requested by Sawyer. There was a dis- agreement, only one obstinate juror favoring the Rogers party. A change of venue was had to Marysville and the case was tried again before Judge W. T. Barbour. John R. McConnell conducted the plaintiff's case, Sawyer being unable for various reasons to attend. Judge Barbour refused to give the instructions which Judge Monson had given on the first trial but gave instructions directly the reverse, and a jury brought in a verdict for the defen- dants. Then Artemas Rogers took particular pains to wait upon Sawyer and announce the result. "You laugh too early," said Sawyer; " I'll show my hand in the Supreme Court. We will meet again at Phillippi. ' ' Rogers afterwards discovered that he had laughed too soon. The plaintiffs were the men who laughed last and who laughed best. The Supreme Court reversed the judgment, in a very brief decision written by Justice Wells, one of the very few opinions penned by that Justice. In the case of Taylor vs. Hargous, which was commenced after Judge Sawyer's removal to San Francisco, and which he won both in the old Superior Court and on appeal, the Supreme Court declared that when' a homestead has been duly selected, and occupied as a residence, and the hus- band executes thereafter a deed of the property and removes with his wife therefrom, but the wife does not join in signing the deed, the homestead is not abandoned and the deed is. void. Justice Heydenfeldt, who wrote the opinion, said: "If the husband can sell at pleasure, and remove to another place, without the consent or approbation of the wife, then the design of the statute to protect her against the improvidence, misfortunes or miscon- duct of the husband, would be totally nugatory." While in Nevada City, Judge Sawyer practiced law in partnership, first with E. F. W. Ellis and afterwards with Judge Stanton Buckner. It was announced in a local print recently that a certain lawyer was the author of the Sole Trader Act. It was an error. E. F. W. Ellis wrote and secured the passage of that measure, its necessity being suggested to him by the circum- 72 BENCH AND BAR IN CALIFORNIA. stances of a certain female friend of his in Nevada City. It is one of th wisest acts on our statute books, although it has often been made the cover c gross fraud. Ellis was in the lower house of the California Legislature in 1852. ' H was an able lawyer; but, like Baker, he was restive in harness, and thirst© for glory. He went back to his State and Baker's State, and, during th war,' was Colonel of the fifteenth Illinois regiment, one of the earliest to volunteer on the first call. He fell in a charge at Shiloh. "Catch me boys !" were his last words. While criticising the evidence of a witness, 01 one occasion, in a Nevada City court, Ellis glanced at the subject of hi remarks just in time to see him draw a pistol. Ellis drew a long knife which he carried, and leaping over the bar table, rushed upon his enemy who at once fled into the street. Ellis then returned and concluded hi argument. Judge Stanton Buckner was from Missouri, to which State hi returned. Sargent, in his hasty history of the Nevada bar, tells this Buckner: To demur was his strong forte. He was a kind and gentlemanb man, but disagreeable to practice with, by reason af his prolixity and slow ness. In arguing a petty criminal case one day before Justice Endicott, wh< was very thin and bony, and who had a very hard seat to sit upon, Buckner after a long talk, assumed a certain attitude peculiar to him, and whicl indicated that he had a great deal more to say. ' ' I will now show you: honor, ' ' he said, ' ' that a man is presumed to be innocent until he is provec guilty." " The court admits that," said Endicott, interrupting; "the cour is with you in that; but there is no presumption that the court's bottom ii made of cast-iron. ' ' In the autumn of 1853, Judge Sawyer removed to San Francisco, anc he has ever since resided there. During his short stay there in 1851, he wai in partnership with Roderick N. Morrison, then County Judge and Presiding Judge of the Court of Session, and Frank M. Pixley. Judge Morrison wai Mr. Pixley's uncle. His name is upon many pages of our earlier Suprem< Court Reports. San Francisco has always been a very easy city to get acquainted with At least a hundred men have won substantial honors there before they wer< well acquainted with a hundred men in the city. Judge Sawyer had no been there a year when he was elected City Attorney. Litigation was verj heavy at that time; the city, too, was involved in many suits. During hi term of office, no judgment was obtained against the city, andofthejudg ments which were rendered in her favor only one — Hazen vs. San Francisco- was reversed on appeal. In the case of the San Francisco Gas Company vs the City of San Francisco (9 Cal. 433), Judge Sawyer, then having passed ou of the service of the city, appeared against the city. He conducted th< plaintiffs case in the District Court, and, on appeal, made an argument an< BENCH AND BAR IN CALIFORNIA. 73 prepared an elaborate brief. The final decision in this case, which was in his favor, overturned principles upon which many judgments in favor of the city rested. In 1855 he was a candidate before the State Convention of his party for the nomination of Supreme Judge, and was defeated by six votes. At that election a nomination was equivalent to an election. In the spring of 1861 he formed a partnership with General Charles H. S. Williams, which con- tinued until his appointment to the bench of the Twelfth District Court. This firm established a branch office at Virginia City, Nevada, where Judge Sawyer was temporarily engaged, when, in May, 1862, Governor Stanford appointed him Judge of the Twelfth District Court, Judge Alexander Campbell having resigned. Crossing the snow-wrapped mountains on horse- back, he reached San Francisco on Saturday night, and on the next Monday, June 2, 1862, he opened court at Redwood in San Mateo County — the coun- ties of San Francisco and San Mateo comprising the Twelfth Judicial District. He was elected at the next election for a full term without opposition, both parties having put him in nomination. Under our reorganized judicial sys- tem, pursuant to our second State Constitution, in 1863, Judge Sawyer was. elected on the Republican ticket a Justice of the Supreme Courts On cast- . ing lots, as required by the constitution, he drew the middle term, six years. During the last two years of his- term he was Chief Justice. In 1869, as his term as Supreme Judge was drawing to a close, Judge Sawyer was appointed by President Grant, Judge of the United States Circuit Court of the Ninth Circuit, embracing the Pacific States. The Senate confirmed the nomination without dissent, and he entered upon the office in the beginning of 1870. At the bar and on the bench Judge Sawyer has always been distinguished for industry and honesty. He never laid claim to brilliancy or genius. He is a man of business, richly endowed with common sense, practical, prudent. Truth and duty are his watch words. In investigation he dives to the bottom and explores with rare patience and application. He always made it a habit to investigate thoroughly whatever might be the subject of his study. His staying qualities are great. The eccentric Dockwood, whose logical power was universally acknowledged, once found Sawyer opposed to him. It was the first case in which Sawyer appeared in San Francisco. I^ockwood made an ingenious argument, and sat down, giving to Sawyer, whom he had never met before, a glance which said, ' 'Who are you, I wonder ?' ' Sawyer was well prepared, and made an argument full, forcible, conclusive. He had the right side of the case, too. When he closed, I^ockwood, who had followed him closely, arose and told the court that Sawyer's argument was sound, and he felt it his duty to surrender. A few minutes afterwards I^ockwood seeing Sawyer in the corridor, approached him with extended hand, and said: "I don't know who you are, or where you came from, but you laid me out as 74 BENCH AND BAR IN CALIFORNIA. cold as a wedge." After some further complimentary remarks, he sug- gested a partnership. judges Field, Sawyer and Hoffman, Federal Judges in California, are oi one mind on the Chinese question. That is, while they might differ as to the kind of legislation appropriate to the subject, they agree perfectly as to where the power of legislation lies. They believe this undesirable immigration should be checked, but hold that all the State can do in the premises is by way of agitation and petition to Congress. In the case of Tiburcio Parrott on habeas corpus, Judge Sawyer has given his views at length. Mr. Parrott, who was President and a Director of the Sulphur Bank Quicksilver Mining Company, a California corporation, was arrested, and held to answer bfore the proper State court for having employed, in the busi- ness of the corporation, certain Chinamen. He was taken on habeas corpus before Judges Sawyer and Hoffman, when elaborate arguments were made by able counsel, pro and con, on the question of the validity of the State law pro- hibiting the employment of Chinamen in certain cases, and of the article in our new constitution upon which that law was based. Judge Sawyer held that the constitutional and statutory provisions were in conflict with the con- stitution and laws of the United States, and of the Burlingame treaty between this country and China. In dealing with the question he threw out these suggestions : Holding, as we do, that the constitutional and statutory provisions in question are void for reasons already stated, we deem it proper again to call public attention to the fact, however unpleasant it may be to the very great majority of the citizens of Califor- nia, that, however undesirable, or even ultimately dangerous to our civilization, an unlimited immigration of Chinese may be, the remedy is not with the State, but with the general government. The Chinese have a perfect right, under the stipulations of the treaty, to reside in the State and enjoy all privileges, immunities and exemptions that may be enjoyed by the citizens and subjects of any other nation; and under the four- teenth amendment to the national constitution, the right to enjoy life, liberty and property, and the equal protection of the laws, in the same degree and to the same extent as these rights are enjoyed by our own citizens. To persist in State legislation in direct violation of treaty stipulations and of the constitution of the United States, and to endeavor to enforce such void legislation, is to waste efforts in a barren field, which, if expended in the proper direction, might be productive of valuable fruit; and, besides, it is little short of incipient rebellion." Unlike his brother Hoffman, Judge Sawyer sometimes makes public addresses. At the fifth annual meeting of the Associated, Alumni of the Pacific coast, held in Oakland, June 3/1868, the Judge responded to the toast, ' 'The Judiciary' ' at some length. He was then the Chief Justice of our State Supreme Court. In this speech he said, among many quotable passages : The bar is the fountain from which the judiciary is to be continually replenished; and, as it is a well established principle in natural philosophy, that the stream can never BENCH AND BAR IN CALIFORNIA. 75 rise higher than the fountain which supplies it, so the bench can never rise far above the level of the bar. I cannot believe it possible that one endowed with fair natural abilities, a sound and unbiased judgment, who has cultivated his talents with diligence and care, and become well grounded in the ethics of the law — who has risen to a true conception of the magni- tude, and become thoroughly penetrated with the vast importance of the mission of the judiciary in its relation to the well-being of man, and to the stability of good govern- ment — can make a bad judge. Such a man may not attain the summit of judicial great- ness; he may not be a brilliant luminary, shedding his light afar, imparting aliment and warmth to nourish and promote the administration of justice in distant lands; but he cannot fail to be a worthy judge and useful in the immediate sphere of his influence; he cannot fail to contribute, in some degree, to the perpetuity of free institutions. In 1879, Judge Sawyer was the Grand Orator of the Masonic Order in California, and on October 13th of that year he delivered the annual oration before the Grand Lodge of this State. It was mainly historical, commenc- ing in the misty dawn of architecture, and tracing the course of operative Masonry through many centuries, pointing the while to the many monu- mental splendors that yet attest its handiwork, down to the time, when, reorganized upon the speculative basis, and using its implements as symbols only, the craft entered the field of charity and free inquiry. Then, following his enlarged theme down to the present day, he said : Masonry is not, and it does not profess to be, a religion, or a substitute for religion; but it inculcates a system of the purest moral's, which is an essential element and neces- sary concomitant of all true religion. There are certain elements or principles which are universally accepted as essential to all systems of faith worthy the name of religion — such as a belief in a Supreme Being; a recognition of the moral distinction between right and wrong; the obligation to recognize and cultivate the practice of all the virtues, such as temperance, sobriety, chastity, fortitude, prudence, justice and, chief of all, charity. On these principles all must and do agree. There are other points of faith upon which the reason may and does pause, inquire, doubt: and. yet it is upon these latter that zealots and enthusiasts dogmatize most confidently, dispute most furiously, and hate most implacably. It is upon these very points where we should be most distrustful of the correctness of our judgment, and most charitable towards the views of others, that man is most confident, most obstinate, most uncompromising; and it is upon these that; he consigns his fellow man to the dungeon, stretches him upon the rack and burns him at the stake. Into that disputed territory Masonry does not enter. Its leading tenet, charity, forbids it— all its principles prohibit it. It accepts and plants itself upon those self-evident and universally accepted principles which lie at the foundation of all true religion and all morality, and upon the recognition and practice of which all human happiness must rest. On March 17, 1869, at a banquet 'at the Brooklyn Hotel, San Francisco, at which many had gathered to commemorate, in that agreeable manner, the life and services of Ireland's patron saint, Judge Sawyer spoke for "The Judiciary of California and of the United States." The specimens of his humor in his remarks on public and social occasions are so few that it may 76 BENCH AND BAR IN CALIFORNIA. be well to give the following a place in this sketch. In closing his response on the occasion just alluded to, he thus sought to call out Judge Crockett, his venerable associate on the bench of the State Supreme Court: Mr. President: I see near me my distinguished associate, Mr. Justice Crockett. The law and the Gospel are intimately connected, and it has often happened that the minis- ters of the one were alike the ministers of the other. In former times it not infrequently occurred that the Lord Chief Justice of England was also a bishop. Even I, myself, Mr. President, have occasionally been set down by careless observers for a priest, but my dis- tinguished friend here never passes among strangers> for anything less than a bishop. That severe and dignified gravity, which sits so gracefully on my friend here, is well' calculated to produce an impression of superior sanctity. I am told, sir, that it has even become dangerous for him to venture abroad unattended; and that on his last excursion from home an expectant cavalcade of pious people, in the southern part of the State, mistaking him for your very eminent and worthy Archbishop, captured my distinguished brother, and, before he could fully comprehend the situation, whisked him off to the Mission Church. What they did with him, and how he escaped, I have never been able to learn. Perhaps he will inform you. Can you wonder at this mistake ? Is it possible to contemplate that benignant countenance, and doubt that, had he lived in the year of grace 492, the mantle of St. Patrick would have fallen on his sanctified shoulders ? It seems to me eminently fitting that he should be present at this festival of St. Patrick. Judge Sawyer's latest public address was that delivered at the laying of the corner-stone of the Iceland Stanford, Junior, University. The act of placing the stone was done by Senator Stanford, the founder of the University, at the site at Palo Alto, Santa Clara County, May 14, 1887. Judge Sawyer's name had led the list of the honored and worthy men whom the founder had selected as trustees of the institution, and at the organization of these gentle- men as a Board of Trustees the Judge was unanimously chosen as President of the Board. By virtue of that office he was called upon to make the address on the occasion stated. A lengthy extract from this address will fitly close this chapter. The little grove in the suburbs of Athens, which Academus presented to the Athenians, constituted the academy in which Socrates, and Plato, and their disciples, taught their pupils philosophy, rhetoric, logic, poetry, oratory, mathematics, the fine arts and all the sciences so far as then developed. The influence emanating from those schools, notwith- standing their limited resources, has been largely felt through all succeeding ages; and it has, to this day, given direction to thought, and contributed largely to mould the charac- ters and the civil institutions of all the peoples of Europe, and their descendants in America, and wheresoever else they may be found on the face of the earth. The peo- ple of that little Republic of Attica— -the whole area of whose territory was only about two-thirds as large as that of the county of Santa Clara, in which our coming University is located — exercised a greater influence over the civilization, institution and destinies of modern nations, than any other people, however great. The groves of Palo Alto — the Tall Tree — are much larger than "Academus' Sacred Shade." These sturdy, unbrageous oaks, with Briarean arms; these stalwart spreading laurels, and these tall eucalypti, are much grander, and more imposing, than the arbor- tenants of the grove at Athens. The soil of Palo Alto is far richer, and more productive than that of Attica ; it yields as fine wheat, as delicious figs, grapes, olives and other BENCH AND BAR IN CALIFORNIA. 77 fruits. Its scenery is almost as grand, and awe-inspiring and quite as picturesque. Its climate is as dry, equable, and delightful. The arroyo de San Francisquito is as flush, and turbulent, in winter, if — while abundantly supplied for all purposes of the University above — as waterless in its lower reaches, in summer, as the two rivulets Cephissus- and Ilissus. The transparent clearness and coloring of our sky is as " matchless " as that of Attica; and the azure dome above our heads, by |day or night, is as pure and as brilliant as the " Violet Crown of Athens. " All our conditions are equally favorable to health, to physical and mental development, and to physical and mental, enjoyment. Not an hour in the year is so cold as to interfere with mental or physical labor, not an hour so hot as to render one languid, indisposed to physical or mental exertion, or as to dull the edge of thought. There is not a place in our broad land, outside our own beloved State, where one can perform so much continuous physical or mental labor without weariness or irksomeness. Should the plans of the founders of the Leland Stanford, Junior, University be carried out, in accordance with their grand conceptions, with such advantages as the location and climate afford, why should not students be attracted to its portals, not only from California, but from all other States of our vast country, now containing 60,000,000 of people and even from foreign lands ? What should prevent this University from becoming, in the great future, the first in this or any other land ? When fully developed, who can estimate its influence for good upon the destinies of the human race ? A word to the founders of the Iceland Stanford, Junior, University. It is fit that the corner-stone of this edifice should be laid on the anniversary of the birth of him, who, while yet a mere youth, first suggested the founding of a university — a suggestion upon which you have nobly acted, and to the establishment of which you have devoted so large a portion of the accumulations of a most energetic, active, and trying life. It is, eminently fit, that an institution founded and endowed on that suggestion should bear his name. The ways of Providence are inscrutable. Under Divine guidance, his special mission on earth may have been to wake and set in motion those slumbering senti- ments and moral forces which have so grandly responded to the impetus given, by devoting so large a portion of your acquisitions, and the remainder of your lives, to the realization of the objects thus suggested. If so, his mission has been nobly performed, and it is fit that both his name and the 'names of those who have executed his behests should be enrolled high upon the scroll of fame, and of the benefactors of the human race. You have wisely determined, during your lives, to manage and control for your- selves the funds of the foundation; to supervise and direct the arrangement and con- struction of the buildings, and the required adjuncts, and to superintend and give direc- tion to the early development and workings of the new University. This is well. He who conceives is the one to successfully execute. May you remain among us, to manage and control this great work, until you shall see the institution founded by your bounty, firmly established on an immovable basis, enjoying a full measure of prosperity, afford- ing the citizens of your adopted State the educational advantages contemplated, and dis- pensing to all the blessings and benign influences that ought to flow from such institu- tions. Long may you enjoy the satisfaction afforded by hopes fully realized — Sen in toelum redeatis. Fellow-members of the Board of Trustees of the Leland Stanford, Junior, University in accepting this grand trust you have assumed the most weighty responsibilities, not only to the founders of the University, but to the children and youth of the Common- wealth, and to their posterity, in all time to come. You have assumed the guardianship of the vast inheritance, to which they have fallen heirs. In the near future, and thence- forth till time shall be no more, the duty will devolve upon us and our successors to 78 BENCH AND BAR IN CALIFORNIA. administer this inheritance in such manner as to accomplish its great end. I call to mind no instance where so large an estate has, at one time, been devoted by the same persons to the foundation of a single institution of a similar character — certainly, none to take effect during the lifetime of the donors. Since our organization, other lands' with ample water rights and facilities, have been added to the estate at Palo Alto especially dedicated as the situs and future home of the University; so that the tract now embraces about eight thousand four hundred acres. The estate at Vina, set apart for all time, as a source of revenue, embraces about fifty-five thousand acre's, of which some four thousand acres are planted in vines, already in bearing, and the remainder is- devoted to various other agricultural and grazing purposes. The Gridley estate, at this time devoted a largely to the production of grain, embraces an area of about twenty-two thousand acres. Since our organization, at an expense of nearly $ 100,000, a winery has been erected at Vina, and furnished with vats, casks and other appliances for making and handling 300,000 gallons of wine — the product of the vineyards — and other wineries and their necessary adjuncts] are now in course of construction, sufficient to afford facilities for the manufacture and handling of 1,000,000 gallons. These improvements are in pursuance of the statement, made in their address, upon the organization of the Board of Trustees, wherein the founders of the Iceland Stanford, Junior, University say : ' 'As a further assurance that the endowment will be ample to establish and maintain a University of the highest grade, we have, by last will and festerment, devised to you and your successors additional property. We have done this as a security against the uncertainty ' of life, and in the hope, that, during our lives, the full endowment may go to you." The aggre- gate of the domain thus dedicated to the founding of the University is over eighty-five thousand acres, or more than one hundred and thirty-three square miles, among the best improved and most valuable lands in the State. The contemplation of these facts will suggest some idea of the magnitude of the responsibilities resting upon us and our successors. CHAPTER VIII. Solomon Heydenfeldt— An Oracle of Quiet Counsel— Hi* Only Criminal Case— The Senatorial Contest of 1851 — On the Supreme Bench and Resignation Therefrom— Other Early Supreme Judges, Hugh C. Murray, Alexander Wells, Alexander Anderson and the Patriarch, Peter H. Burnett — Reminiscences and Anecdotes^of John C. Fremont, T. Butler King, John B. Weller, Wilson Flint, Henry S. Foote, Tod Robinson, Newton Booth, Solomon A. Sharp, E. T>. Wheeler and Ed-ward Norton — The Roll of Governors of California. In another chapter has been given the incident of the lawyer who, on entering Court one day, found the McAllister family in sole but not adverse possession. They held the bench, the clerk's seat, and the bar. The lawyer withdrew softly — he didn't want to intrude. A feeling akin to his is mine, as the pensive face of another sage comes impressively into the field of view. I would not intrude into so quiet a life. The features we now see testify to serious problems solved by untiring effort, but they show lines of tenderness and sympathy that have held their place beside the imprint of absorbing thought. They speak, too, of reputation won, not in forensic encounter but in council. ' ' Cautious, silent and laborious, ' ' as Macaulay pictured Godolphin, here is a mind that has kept tranquil amid the severest em- ployments reaching through a long flight of time. Here is one whose lifework has been done apart from public observation. I would have to go into his office to study him. But, like Mr. Papy (in Chapter II), I don't like to intrude. However, it must not be understood that this prime character has lived and labored as a recluse. Some open views, even of him, are to be had now and then. Solomon Heydenfeldt was born at Charleston, South Carolina, in 1816. When he was eight years old his father died, having been a teacher of ancient languages, and having been completely stripped of a considerable, estate during his absence from home, by the defalcation of an agent who held his power-of-attorney. Being fortunately reared with maternal care, Solomon Heydenfeldt was sent to a college in Pennsylvania, where he studied Latin and Greek and mathematics; but he left college without graduating. Returning to Charleston he studied law in the office of the eminent advocate De Saussure, son of the great Chancellor of the Palmetto State. In the year 1837, at the age of twenty-one, he removed to Alabama, first stopping at 80 BENCH AND BAR IN CALIFORNIA. Montgomery, where he was admitted to the bar. He soon afterwards settled in Russell county, near the Georgia line, and practiced law in both Georgia and Alabama. In this region he maryed, and passed thirteen years of his life in active and successful law practice. This period of his career was, however, marked with no events of public interest. He removed to California in the spring of 1850, settling at San Francisco, and opening an office in what is now the Old City Hall. His excellent habits and business assiduity, his generous disposition, broad legal knowledge and dignified presence quickly made him a man of mark, in that era of reckless activity. He acquired a fine practice in civil business. The only criminal case he ever had in his life was tried in the fall of 1 85 1. For this reason it is worthy of note. Furthermore, it gives a glimpse of the loose mode of judicial procedure at that time, and presents a ludicrous instance of a jury's sense of propriety. Samuel Gallagher had killed Lewis Pollock on the night of June 22, 1851. Gallagher was tried for murder in the Fourth District Court, Delos Lake presiding, August 12, 1851. His counsel were Solomon Heydenfeldt, John B. Weller (afterwards Governor and United States Senator) and Colonel Barton. It may be said that Barton was a "Philadelphia lawyer," a beautiful speaker, a brilliant fellow, but cursed by the greatest infirmity of genius. His career was brief; he was sud- denly missed at the bar, and a rumor came back that he perished at sea, a fate which some years later befell Lockwood, another legal genius with riot in his blood, who will be noticed in a subsequent chapter. The case of Gallagher was a hard one to defend. Harry Byrne, District Attorney, made a strong prosecution. Judge Heydenfeldt had the general management of the prisoner's cause, but did not address the jury. The speaking was done by Weller and Barton, the latter coming out strong and fervid. The jury disagreed. At the second trial, which occurred on November 14, 1851, Gallagher insisted that Judge Heydenfeldt should speak for him, and the Judge complied, closing the argument for the defense. The case was given to the jury at about six o'clock in the evening, the court taking a recess and Judge Heydenfeldt going into his office, which adjoined Judge Lake's court- room, to "wait for the verdict." At nine o'clock that night the bailiff entered Judge Heydenfeldt' s office and informed him that he was directed by the jury to state to him, Heydenfeldt, that they stood, firmly, seven for con- viction of murder in the first degree and five for acquittal, but that if it pleased him (Heydenfeldt) they would agree upon a verdict of manslaughter ? Judge Heydenfeldt quickly returned an expression which he afterwards had occasion many times to use while Supreme Judge, "I concur." Judge Lake was sent for, and a verdict of manslaughter was brought in. The prisoner was sentenced to three years' imprisonment and was fined $500.. Fining prisoners in capital cases, in addition to imprisonment, was quite the fashion BENCH AND BAR IN CALIFORNIA. 8 1 here in early days. The law and the courts never got so far advanced, how- ever, as to fine a man and hang him, too. After Gallagher had been in jail — there was no State Prison then — about six months, he was pardoned by the Governor. After the sentence of Gallagher, Judge Heydenfeldt told his friends gen- erally of the communication between himself and the jury. Judge Lake did not learn of it until the sentence had been imposed, or, it is safe to say, there would have been a signal exhibition of judicial wrath. The legislature which met at San Jose in January, 1851 — the first session after the admission of California into the Union — was nearly evenly divided between Democrats and Whigs. On joint ballot the Democrats had a slight supremacy. When the two Houses met in convention to ballot for a United States Senator to succeed John C. Fremont, Solomon Heydenfeldt was , the Democratic caucus candidate, and T. Butler King, then Collector of this port, was the Whig nominee. Fremont, it may be explained, had been elected for the short term by the legislature which met previous to the admission ol the State, on the happening of which event (September 9, 1850) he took his seat in the United States Senate, to serve until the following March. In January, 1851, in the contest now to be noticed, he was a candidate for the succession, and received seven votes, his supporters being native Californians, (not Native Sons of the Golden West, so-called, but of Spanish and Mexican extraction). Judge Heydenfeldt, being Southern in his politics, three or four Northern Democrats, all of whom had participated in the Democratic caucus, " bolted " the caucus nomination, refusing persistently to vote for him. They voted for John W. Geary, who was afterward Governor of Pennsylvania. The legislature took no less than one hundred and forty-two ballots ^without an election. There was danger during the protracted struggle that Fremont's native sons would vote for King, and end the fight, in which event the Demo- cratic bolters would not have accomplished anything of extra value, inasmuch as King was himself a proud Southron. That legislative session closed with- out an election of Senator. At the next session John B. Weller was chosen. But for this unexpected miscarriage, Judge Heydenfeldt would have entered the Senate in his 35th year. His discomfiture recalls a similar fate which befell Henry S. Foote in 1856. The California legislature in that year had a large native American or Knownothing majority in the Assembly, and a majority of one in the Senate. Governor Foote, who had been Governor of Mississippi, and United States Senator from that State, was the caucus nominee for the United States Senate. But the present act of Congress governing the mode of electing Senators was not then a law, and it required the concurrence of both branches of the legislature to bring on an election. The Knownothings were not able to bring the two branches together, because 82 BENCH AND BAR IN CALIFORNIA. Wilson Flint, one of their party in the Senate, voted steadily with the Demo- crats against a joint convention. Flint was a hold-over Senator from San Francisco, an Independent, but had after his election joined the Knownothings, and, in the Fall campaign of 1855, had made speeches on the stump in behalf of that party, in company with Governor Foote. The Knownothings had' intended to go into joint convention without first holding a caucus, but Flint said a caucus must be held, and one was held accordingly. Foote being nominated, Flint refused to vote for him. He was very patient under the anathemas which William I. Ferguson and others poured upon him. One reason assigned for his bolting was that in the canvass of the preceding Fall Governor Foote had written to the Knownothing State Central Committee to call Flint home, as his prosaic speeches were repelling instead of persuading the dear people. Flint heard of this letter and took his revenge. Newton Booth, elected by the Independents United States Senator in 1873, narrowly escaped the fate of Heydenfeldt and Foote. A most zealous friend of Judge Heydenfeldt in his contest for the United States Senate was Judge Stephen J. Field, then a member of the Assembly. It was the general belief among Democrats, after the legislature adjourned, in 1851, that Judge Heydenfeldt would be the party candidate for United States Senator at the next session, one year later. But before that session opened he was nominated by the State Convention of his party for Judge of the Supreme Court. As will be readily believed, he was enthusiastically urged for this position by all the other leading men of his party who had their eyes upon the United States Senate. When the legisla- ture next met the Democrats had a majority, and John B. Weller was sent to Washington as Fremont's successor. Judge Heydenfeldt was elected in the Fall of 185 1 a Justice of the Supreme Court, his Whig opponent being Hon. Tod Robinson, father of the well known lawyer Cornelius P. Robinson. Judge Robinson had been Judge of the Sixth Judicial District at Sacramento. He was a North Carolinian, and a lawyer of fine ability. This was the first election for Supreme Judges under the State government, the first Justices of the Supreme Court having been chosen by the legislature previous to the admission of the State. Judge Heydenfeldt succeeded Judge S. C. Hastings, and his term, was for six years, commencing January 1, 1852. After only two months' service he left the State on a visit to Alabama, where he had left his family. This departure of a Supreme Judge from the State precipitated a judicial controversy, which was; certain to arise sooner or later — in consequence of the inadvertence of the first constitutional convention — and which resulted in one of the most in- teresting adjudications to be found in all the Reports. The legislature had, a few weeks before, by a joint resolution of the two Houses, granted the judge leave of absence for six months. A month after his departure the legislature BENCH AND BAR IN CALIFORNIA. 83 passed an act authorizing the Governor to fill the ' ' vacancy ' ' by appoint- ment ; and the Governor, Bigler, immediately appointed Alexander Wells. On April 12, 1852, six days after presenting his commission, Justice Wells stated to the court that a doubt having been expressed as to the constitutionality of the act of the legislature authorizing executive appointments to supply vacancies caused by temporary absence, he would absent himself from the bench until the validity of his appointment should be adjudicated, and sug- gested that the Attorney General be directed to institute proceedings in the nature of a quo warranto, in order to test the question. The court directed an order to that effect to be entered on the record. The proper writ was soon afterwards issued out of the Fourth District Court, judgment was entered in favor of Justice Wells, and an appeal, upon an agreed statement in writing, was taken to the Supreme Court, where the question was argued on the part of the people by the Attorney General, who was ex- Chief Justice S. C. Hast- ings, while Justice Wells himself, aided by Gregory Yale and R. A. Lock- wood, presented the other side. The only brief on file was Lockwood's. This brief has been retained in the new edition of the old Reports. It is a strong, logical paper — one of the very few testimonials that Lockwood left on record of his legal knowledge and acumen. The temporary retirement of Justice Wells left only two Justices on the bench — Chief Justice Murray and Justice Anderson. They disagreed in deciding the question involved. Both filed elaborate opinions, Murray holding that Justice Wells was not entitled to a seat upon the Supreme Bench, the law under which he was appointed being unconstitutional, inasmuch as the temporary absence of Judge Heydenfeldt created no vacancy in the office. Justice Anderson declared that Justice Wells' appointment was " constitutional, and that he ought to take his seat npon the bench. These two early opinions are models of cogent reasoning, and engage the intelligent reader by their vigor of expression and eloquence of style ; probably, in these respects, they are not eclipsed by any decision to be found in the California Reports. (Vide 2 Cal., 198.) The concurrence of two Justices being necessary to pronounce a judg- ment, the Chief Justice remarked that, on the subject of resuming his seat, Justice Wells must exercise his own discretion. Justice Wells, who had brought the question into Court, ' ' exercised his own discretion ' ' very promptly — he took his seat on the' bench. Justice Heydenfeldt returned and relieved him at the expiration of the six months' leave of absence, and immediately filed the following opinion in the case : "When this case was first argued, opinions were delivered by the Chief Justice and Mr. Justice Anderson, and their opinions being in conflict with one another, it was neces- sary, in order that the case should be decided, that there should be a reargument or sub- mission. The counsel for the respondent (Justice Wells) insists that, as the term of office in dispute has already ended, there i9 no necessity for a decision, and it is unusual 84 BENCH AND BAR IN CALIFORNIA. in such cases to make one. His position is entirely true ; but, at the same time, it is always a matter of discretion with the court, whether it will be influenced by those rea- sons. In this case we consider the question involved as one of vast importance, and, governed by that consideration, we have determined to decide. "The Chief Justice has advised me that his opinion already on file will be adhered to ; that he will make no alteration, and considers it unnecessary to prepare any other. I haveexamined that opinion carefully and concur fully in its reasonings and conclusions. The whole subject has been fully examined by him, and he has so well demonstrated the unconstitutionality of the law under which the appointment of the respondent was made, that it would be supererogation to enter into any future discussion. "The judgment of the court below is reversed; and, as we are judicially notified that the term of the respondent has expired, it is, therefore, ordered that the proceedings in the district court be dismissed." At the new election, Justice Wells was chosen by the Democracy a Supreme Judge. He served through the year 1853, and nearly all of the year following, dying October 31, 1854. His opinions were remarkably few, nearly all the decisions of the court during his term being written by Judge Murray or Judge Heydenfeldt. He was a New Yorker and a wife and daughter survived him. On January 6, 1857, having served five years on the bench, only one year of his term remaining, Judge Heydenfeldt resigned. His opinions are con- tained in volumes two to seven, inclusive, of the Reports. He left the bench because the salary did not enable him to support himself and family and -other dependent relatives. He has had, ever since he came to this State, a large number of persons to provide for. Resuming practice in San Francisco, he followed it with activity and success until the Test Oath Act was passed by the legislature, which required all lawyers, as a condition precedent to the right of practice in the courts in civil cases, to take and subscribe a strongly worded oath of loyalty. A few Southern lawyers, among them Judge Hey- denfeldt, Gregory. Yale and E. J. Pringle, could not conscientiously subscribe to this, and accordingly withdrew from the courts. Gregory Yale had the question of the constitutionality of this act adjudicated by the Supreme Court, and that tribunal decided in favor of its constitutionality (Vide 24 Cal. , 242). Hon. John F. Swift had filed an objection to Mr. Yale's appearing in the Supreme Court without taking the oath. The act was repealed several years later, but by that time Judge Heydenfeldt had obtained a lucrative office business as advisory counsel to many large firms, capitalists and cor- porations, and he has since steadily adhered to that department of the pro- fession. He tried a few large mining cases in the District Court of Storey county, Nevada, at a time when a test oath act, similar to the California statute, was in operation in that State, but he was not required to take the oath, the act being treated as a dead letter. He has long been counsel for large mining corporations , is learned in mining law, as well as informed in BENCH AND BAR IN CALIFORNIA. 85 practical mining, and owns valuable mining interests scattered over many districts. It is to be recorded of this gentleman, that, having done avast amount of business for women of all conditions for many years, he has never yet charged a woman a fee, whether she was rich or poor. His beneficence has been widely felt and is unfailing in many lines. He has accumulated a large fortune, but his expenses and charities are a constant and serious drain upon it. To the yellow fever fund of the last decade , he made a princely contribution, and had it credited to "cash." In person he is diminutive, with small hands and feet, dark hair and complexion,, a kind eye, well shaped head and finely chiseled features. His weight is suited to his stature, he is well preserved, and possesses distin- guished dignity of manner. A man universally esteemed, he yet holds him- self aloof from the people. He is not a man of the masses. I once heard him on the stump addressing a multitude of the " unterrified." He was out of place. He dislikes all gloss, and glitter, and tinsel, yet is void of arrogance or affectation. He has known sorrow, borne the burden of care, and has been thrown amid all the snares of pioneer adventure, yet his have been the mood and habit of the philosopher, and he has steadily preserved his peace of soul, and the purity of his private, public and professional life. Judge Heydenfeldt is a widower, having been twice married. The eld- est of his children, an accomplished gentleman of middle age, bears the same name and dignifies the same profession. In the Supreme Court, sitting at San Jose, in 1853, Solomon A. Sharp of San Francisco, in the midst of an argument, was given to understand by Judge Heydenfeldt that the Court did not agree with him. He continued his argument in spite of admonitions from the bench, until finally told in plain terms that the Court was confirmed in its opinion, when he ceased to struggle,. remarking, " Well, it's an honest difference of opinion." " Yes," said Judge Heydenfeldt, in his polite and quiet way, "but it's a very material one." The learned counsel showed no further sign of life. It so happened that Solomon A. Sharp, of whom I have another laughable incident to give in another chapter, in connection with Hon. E. D. Wheeler, met that gentleman for the first time on the occasion just mentioned. These names will supply me with pleasant themes, but, not following them now, the occurrence in the Supreme Court at San Jose recalls another worth the telling. A young lawyer was arguing his first demurrer. It was in the old Twelfth District Court, and Hon. Edward Norton, afterwards a Supreme Judge, was on the bench. An adverse decision followed the young attorney's argument; still, he would not sit down. For some minutes he wrestled with the bench as if determined to change the judicial mind. "Young man," said Judge Norton, some what sternly for one so kind, "do you want to quarrel with the 86 BENCH AND BAR IN CALIFORNIA. court." "Not at all, sir," was the quick answer. "Very well; that is right," said the Jifdge gently. " You might as well learn right now that it is folly for a lawyer to quarrel with the court, for in controversies of that kind the court always has the advantage." The young man thereupon accepted the situation. He always liked Norton, and followed his advice. < Justice Alexander Anderson, who has been referred to, was an able jurist, who had, before coming to California, represented Tennessee in the United ■States Senate. Another Alexander Anderson, a Virginian, was once a bright light of the bar in northern California. He arrived here in May, 1854, and only seven months later, in his forty-sixth year, perished, with a large num- ber of victims, at the most terrible boiler explosion that has ever occurred in this State — that of the steamboat Pearl, at Sacramento. His law business had called him to the Supreme Court at the Capital. His brother, John Anderson, is a lawyer at Nevada City. The youngest Justice and the youngest Chief-Justice of all who have ever sat upon our Supreme bench, was Hugh C. Murray. Born in St. Louis, Missouri, April 22, i8"25, of Scotch extraction, he was reared at Alton, Illinois, where he received a limited education and read law in a lawyer's office. When twenty-one he joined the army, and served during the Mexican war as lieutenant in the Fourteenth Regular Infantry. After that war he returned home and was admitted to the bar, but at once set out for California. Going to Panama by steamer, then, unable to get a better passage, he took a sailing vessel for San Francisco. The sailer proving intolerably slow he got off with others at Cape St. Lucas and walked the long distance thence to his destination, which he reached in September, 1849. He at once commenced the practice of law. Quite soon he was very busy, but, in a few months, the legislature elected him one of the associate justices of the Superior Court of the city of San Francisco, a court that after dispensing justice for a few years, was itself dispensed with by act of law. Murray had brought with him from the east no fame or influence or means, but on the bench of the old Superior Court he displayed so broad a knowledge of law and such superior qualities as a Judge that his appointment to the Supreme bench by Gov. McDougal in October, 1851, in place of Nathaniel Bennett, resigned, was a fulfillment of the hearty wish of the bar. • He became Chief Justice upon the resignation of Hon. H. A. Lyons in 1852 and was elected his own successor by the Democracy. In 1855 he was re-elected Chief Justice by the Native American party. He died of consumption, in Sacramento, while still Chief Justice, on September 18, 1857. He had reached that high station at the age of twenty- eight, having become an Associate Justice two years earlier. Murray pos- sessed a patient and powerful mind, capable of the severest investigation. Judge W. T. Wallace, who was Attorney- General when Murray died, declared BENCH AND BAR IN CALIFORNIA. 87 that the latter was gifted with an intellect that could grasp the mightiest subject; an analysis that solved, as if by intuition, the most intricate legal problems. His associate on the Supreme bench, who succeeded him as Chief Justice, testified to his quick perception, his moral courage, his justness, his frankness and fidelity, .and declared that his loss was irreparable. He was, withal, a dignified and impressive speaker on the stump. In his day candi- dates for the bench were not exempted from the custom of active, open ■electioneering in behalf of their party and themselves. I heard Murray on the stump at Sacramento in 1855. His utterance was distinct, deliberate; his voice strong and very agreeable to the ear and he wore an easy dignity that seemed to reconcile his candidacy to his surroundings. He was then speaking for the new American party then about to sweep the State. "Fellow citizens," he said, " the Whig party is dead, and has been dead for ages; and the Democratic party, if not dead, is in the last throes of expir- ing agony. ' ' This sounded very well, indeed, and the ' ' agony ' ' part was given in a way that evoked loud laughter. But I felt like calling on the •ermined orator to explain. His words, rolled out so grandly, were neither true of the one party, which wasn't quite dead then, nor of the other, which isn't dead yet. Judge Murray's most elaborate opinion was his last — that in Welch vs. Sullivan, reported after his death, in 8 Cal., 155. Judges Terry and Burnett, -who concurred in the judgment, slightly modified it at the next term — see 8 Cal., 511. " Can you tell me who is that elderly man in the party opposite ?" " Ah, yes. And my answer will be a surprise." We were having an after-dinner chat in the parlor of a city hotel — my friend being a distinguished man of affairs from the East. The ' ' elderly man in the party opposite ' ' had been talking with some gentlemen for quite a while, all standing by an open fire, and, by his tranquil bearing and benevolent aspect, had attracted the attention of the stranger. "Well, tell me who he is?" I was asked again. "That is Peter H. Burnett, the first Governor of the State of California, " -was the reply. " Indeed ! Let's see — how long has California been a State ?" " We were admitted in '50 — September 9th." ' ' A long time ago, ' ' mused my friend, ' ' and there stands j^our first •Governor !" ' ' Yes. Did you ever see a better preserved man ? He is eighty years of age, full of years and full of honors. He has also been a successful lawyer and a Supreme Judge. ' ' ' ' What can you tell me of him ?' ' 88 BENCH AND BAR IN CALIFORNIA. "A great deal. If you can spare the time I will promise to interest you. " " Go on, " he said, and I proceeded leisurely. ' ' I have to speak of a man who has been pre-eminently the architect of his own fortune, and who enjoys a spotless fame. The State has had sixteen Governors. These have been, naming them, not in the order of merit, but according to their periods, Peter H. Burnett (whom you are now observing) John McDougal (with one '1,' mind you), John Bigler, J. Neely Johnson,, John B. Weller, Milton S. Latham, John G. Downey, Iceland Stanford, Frederick F. Low, Henry H. Haight, Newton Booth, Romualdo Pacheco, William Irwin, George C. Perkins, George Stoneman and Washington Bartlett. The list, on the whole, is creditable to a young common- wealth of heterogeneous elements, and shows two or three strong and well equipped intellects. McDougal " ' ' I knew him, ' ' interrupted my friend. ' ' Where ?" "In Washington. ' " ' ' Not so, dear sir; you confound Governor McDougal with the accomplished Senator. Didn't I tell you to mark the single '1?' McDougal, Downey and Pacheco were elected Lieutenant-Governors, and filled out the vacated places of Burnett, Latham and Booth. Governor Burnett was the only one who ever stepped voluntarily from that high post to private life. Latham, after an incumbency of ten days, was accredited by the legislature to serve out the remainder of the senatorial term, made vacant by the tragic death of David C. Broderick. He had lately beaten the then Governor, John B. Weller, for the Democratic nomination for Governor, and now again prevailed against him in the short, sharp fight for Broderick' s vacant seat. Pacheco- became Governor, when Booth went to the Senate for a full term, after having been Governor for two years." " Let me ask," my friend inquired, "the politics of these men?" ' ' Governors Burnett, McDougal , Bigler, Weller, Latham, Downey, Haight, Irwin, Stoneman and Bartlett were put in office by the Democratic- party; Stanford, Low, Booth, Pacheco and Perkins by the Republicans, and Johnson by the Americans, or Knownothings. ' ' The patriarch standing there has always been cautious, refiectives laborious, and in morals stainless. His age I have told you. The majority of the restless, chafing spirits who helped to make politics in our early days an excitable and perilous pursuit, were from the Southern States. As if in compensation, it would appear, Providence gave the State in the person of it, first pilot, a Southern man of pacific soul, who through business vicissitudes,, party strife and social upheavals, ever kept the even tenor of his way. "Governor Burnett is a native of Tennessee. His father was a farmer and carpenter. The name for generations had been Burnet; the Governor was the first of the family to add a t, and all his brothers followed suit. His. motive was to make the name more complete and emphatic. In youth the BENCH AND BAR IN CALIFORNIA. 89 precepts of one of his ancestors were imbedded in his moral being, namely: ' Pay your honest debts; never disgrace the family; help your honest and industrious kin.' His early manhood was spent in Missouri, chiefly in mercantile pursuits, in which he failed and which involved him in large indebtedness. That he might be able to cancel his obligations and restore his wife to health, he looked to thenew Northwest as far back as 1843, in which year he took his wife and six children in ox teams to Oregon when the right to that territory was disputed by the United States and Great Britain. He lived in Oregon five years, aided in establishing the provisional government and cultivated land. He came to California in 1848, and after working in the northern mines for a few weeks settled at Sacramento and entered on law practice. He had been admitted to the bar in Tennessee- He became soon after his arrival the lawyer and agent of General John A. Sutter, the great landlord of Central California, and found the employment very profitable. Removing to San Francisco, where his family rejoined him, he opened a law office. His profession, his manners, his business judgment and habits of life made him speedily and favorably known. In the first Gubernatorial campaign the candidates were not nominated by regular conventions, but put forward by public meetings. Colonel J. D. Stevenson called a Democratic meeting on Portsmouth Square, and upon his nomination Peter H. Burnett was declared the Democratic nominee for Governor. Other meetings pro- claimed John W. Geary (Democrat), W. S. Sherwood (Whig), John A. Sutter and W. N. Steuart (Independents). The people gave Burnett 6,716 votes, Sherwood, 3,188, Sutter 2,201, Geary 1,475, Steuart 619. Governor Burnett was inaugurated in December, 1849. Public life proved distasteful to him and he resigned in January, 185 1, when the legislature was sitting at San Jose. He then resumed law practice in partnership with William T. Wallace and C. T. Ryland, who were destined to be his sons-in-law and dis- tinguished in the history of the State. In 1852 he paid to his old business partners in Missouri the last dollar of his debts, which had aggregated $28,740, and has never since been financially embarrassed." ' ' How T was he as a Governor ? ' ' ' ' His admistration was quiet and prudent. I recall nothing of striking interest which marked it. He was a business Governor. I now recollect that his last message closed with a recommendation that the law be repealed which provided that no action should be maintained for criminal conversa- tion or seduction. He urged its entire repeal, in order, he said, that the law might throw around the chastity of our wives and daughters that protection which ought to be afforded by every civilized country. He was the first to urge the exemption of homesteads from forced sale and attachment. ' ' ' ' I presume he is the Nestor of your bar ? ' ' " No ; it has been many years since he was identified with our bar. He 9 I 857, nearly three months earlier than he had anticipated. When he took his seat upon the bench — and I distinctly recall it as a memory of my boyhood — Judge Field possessed the expressed confidence of not only his own party, but of the opposition. His reputation as an enlightened leader of his profession had spread to all parts of the State, and the general hope and conviction were that he would be, not a partisan, but a thoroughly upright and honest judge. He went upon the bench with the "All Hail!" of the bar, and was greeted as a veritable "Daniel come to judgment." A few months after he went upon the bench of the State Supreme Court the legislature passed a Sunday law, or an act for the better observance of the Sabbath. The question of the policy of such a law had not figured in the preceding political campaign. The same canvass which resulted in the choice of the members of the legislature for that session also placed Judge Field on the Supreme bench. That legislature (1858) was Democratic in both branches. There was little excitement over the efforts to enforce the first Sunday law, compared with that which a much later and similar enact- ment provoked. One Neuman, an Israelite, a clothing dealer, being arrest- ed and imprisoned for violating the new law, was brought before the Supreme Court on habeas corpus. That tribunal was then composed of Judges David S. Terry, Peter H. Burnett and Stephen J. Field. The law was declared un- constitutional, Judge Field dissenting. The latter discussed the law as a moral, sanitary and business measure. He declared that in its enactment the legis- lature gave the sanction of law to a rule of conduct which the entire civilized world recognized as essential to the physical and moral well-being of society. He should be quoted on this important question: Upon no subject is there such a concurrence of opinion among philosophers, moral- ists and statesmen of all nations, as on the necessity of periodical cessations from labor l6o BENCH AND BAR IN CALIFORNIA. One day in seven is the rule, founded in experience and sustained by science. There is no nation, possessing any degree of civilization, where the rule is not observed, either front the sanctions of the law or the sanctions of religion. This fact has not escaped the ob, servation of men of science, and distinguished philosophers have not hesitated to pro- nounce the rule founded upon a law of our race. The legislature possesses the undoubted right to pass laws for the preservation of health and the promotion of good morals, and if it is of the opinion that periodical cessa- tion from labor will tend to both, and thinks proper to carry its opinion into a statutory enactment on the subject, there is no power, outside of its constituents, which can sit in judgment upon its action. It is not for the judiciary to assume a wisdom which it denies to the legislature, and exercise a supervision over the discretion of the latter. It is not the province of the judiciary to pass upon the wisdom and policy of legislation ; and when it does so, it usurps a power never conferred by the constitution. In this dissenting opinion, Judge Field then proceeds to argue that the law was in the interest of labor ; that its aim was • to prevent physical and moral debility ; that in this aspect it was beneficent and merciful. (See- ex parte Neuman, 9 Cal. 502.) Three years later the legislature passed a Sunday law substantially the same as that of 1858. That body was Repub- lican in both branches. The first Sunday law was approved April 10, 1858 ; the second, May 20, 1861. This second act, which was, as stated, substan- tially the same as the act of 1858, was declared constitutional by the Supreme Court. Judge Field was still on the bench, and had been reinforced by Judges Joseph G. Baldwin and W. W. Cope, who succeeded Judges Terry and Burnett. Judges Field, Baldwin and Cope were of one mind — that the law was constitutional (see ex parte Andrews, 18 Cal., 680) ; and they em- phasized and reaffirmed this judgment in ex parte Bird (19 Cal., 130). These two decisions of Judges Field, Baldwin and Cope have been repeated- ly commented on and approved by their successors on the Supreme bench, (See Cohen vs. Wright, 22 Cal., 321 ; Jackson vs. Shawl, 29 Cal., 271 ; ex parte Shrader, 33 Cal., 282.) It is to be recorded here that this Sunday law, which became a part of our Penal Code, was repealed by act of February 8, 1883. The opinions of this jurist, delivered while on our State Supreme bench, are comprehended in fifteen volumes of the California Reports — numbers seven to twenty-one inclusive. They have been commented on and approved by Mr. Fmory Washburn, Professor of I^aw in Harvard University, (see American Law Register for June, 1862), by Judge Dillon, a leading and uni- versally approved American law writer, by Professor John Norton Pomeroy, who has ably sketched Judge Field's career as legislator and jurist, by the late Judge Joseph G. Baldwin, one of the most fertile legal minds, who said that "Judges reposed confidence in his opinions, and he always gave them the strongest proofs of the weight justly due to his conclusions," and by many other authorities on legal science. Says Professor Pomeroy : ' 'I was told by a gentleman who has for many years been employed by a leading law BENCH AND BAR IN CALIFORNIA. l6l publishing house of Boston as its traveling agent through all the States of the Mississippi and Ohio valleys, that, when he first began his work, the New York Reports were universally sought for in every State; but that of late years the demand had changed from the New York to the California Reports. Everywhere through the Western and the Northwestern States the profession generally wished to obtain the California Reports as next in authority to those of their own State. ' ' This gratifies our State pride; and to whom do we owe it more than to Judge Field? He had been longer on our Supreme bench than any other man; his decisions had been less disturbed and more respected by his succes- sors than those of any other judge, and, being grounded in immutable prin- ciple, they have all the strength and majesty of authority. Judge Field was commissioned by President Lincoln a Justice of the Supreme Court of the United States, on March 16, 1863. He took the oath of office, May 20th, following. He was assigned to the Tenth Circuit, then comprising California and Oregon, Nevada being afterwards included. He is therefore from necessity, what in earlier days he was from inclination, a great traveler. Before the overland railroad was completed he traveled over 12,000 miles a year; since that event, over 8,000 miles a year. Formerly he was required to hold court in San Francisco one term, annually, and also sit with the United States Supreme Court at Washington, each winter. Since 1869, under a law creating the office of Circuit Judge, he has held court in San Francisco every other year. All of his original associates on the United States Supreme bench have passed away, except Judge Miller. Ever since he entered upon his high office he has reg- ularly attended the terms of court, and done his full share of the work. In the Milligan case, which went up from the Circuit Court in Indiana, on habeas corpus, it was held (Justice Davis writing the opinion) that mili- tary commissions organized during the war, in a State not invaded nor en- gaged in rebellion, in which the Federal Courts were open and in the undisturbed exercise of their judicial functions, had no jurisdiction to try a citizen who was not a resident of a State in rebellion, nor a prisoner of war, nor a person in the military or naval service. This was a five-to-four decision, Judge Field turning the scale. He was also one of five against four in the Cum- mings case, in which it was held that a State could not exact an oath (or past conduct. Judge Field wrote the opinion in this case. He said therein that ' ' Test oaths in England and on the continent of Europe have always been limited to an affirmation on matters of present belief, or as to present disposi- tion towards those in power. It was reserved for the ingenuity of legisla- tors in our country, during the civil war, to make test oaths reach to past conduct." 1 62 BENCH AND BAR IN CALIFORNIA. He also wrote the opinion in the Garland case. Here, again, were five j udges against four. Mr. Garland is now Attorney General of the United States. He represented Arkansas in the Confederate Congress. In July, 1865, he received from the President of the United States a full pardon. He could not take the oath of office prescribed for attorneys of the United States Supreme Court. He asked to be permitted to practice without taking the oath. The court held that he could freely do so, his pardon having released him from all penalties and disabilities. On the Chinese question Judge Field's views are on record. They are identical with those of Judges Sawyer and Hoffman — namely, that the whole power over the subject lies in the federal government. (See the chapter on Judge Sawyer.) On January 13, 1866, at Washington, while opening his mail, which lay on a center table, Judge Field noticed among the papers* a small package . about an inch and a half thick, three inches wide, and three and a half inches long. It was stamped, addressed "Hon. Stephen J. Field, Wash- ington, D. C," and was marked "Per Steamer." It bore no trace of hand writing. The Judge's name had been cut from a volume of the California Reports, and pasted on. The words "Washington D. C," and "Per Steamer," had been cut from a 1 newspaper. On the ' other side were the words in print: "From Geo. H. Johnston's Pioneer Gallery, 645 and 649 Clay Street, San Francisco. " Thinking it was a present for his wife, who was then in New York, he concluded to partially open it to satisfy himself on that point. Tearing off the paper and raising the lid of what appeared to be some sort of a little box, he was struck with its black appearance inside. "What is this?" he said to Judge Delos Lake, of San Francisco, who was making him a call. Judge Lake also suspected something wrong, and quickly said, looking over his friend's shoulder; ' 'Don't open it — it means mischief." Judge Lake took it in his hands, and, treating it with the utmost tenderness, carried it over to the capitol and showed it to Mr. Broom, one of the clerks of the Supreme Court. They concluded to try to explode it. They dipped it in water, let it soak for some minutes, then took it into the carriageway, under the steps leading to the Senate chamber, and threw it against the wall, shielding themselves behind one of the col- umns. The blow exposed the contents. Twelve pistol cartridges lay im- bedded in glue; a bundle of sensitive friction matches, a strip of sandpaper, and some fulminating powder were ingeniously placed — the whole contrivance being so arranged that opening the lid would ignite the matches, which, hi turn would explode the cartridges. It was sent to the War Department, and General Dyer, Chief of Ordnance, had it examined. A detailed description of it was returned to General Dyer by Major Benton. This murderous instrument was evidently sent to the Judge by some man BENCH AND BAR IN CALIFORNIA. 1 63 in San Francisco, who had been disappointed by some decision. On the inside of the lid was pasted a slip cut from a San Francisco paper, of October 3 1 , 1864, stating that Judge Field had on the day previous decided a certain case, but this availed nothing so far as the discovery of the bloody-minded inven- tor was concerned. He was never found out. Not even an arrest was made in connection with the affair, although the San Francisco police and many detectives spent months in trying to find a clue. Judge Field was married in San Francisco, in 1859, and his wife, who was Miss Sue V. Swearingen, is still living. There has been no issue of the marriage. About the year 1880 Judge Field had printed, in a neat little volume of 250 pages, his autobiography. This was to preserve the record of his event- ful life, and was distributed to his intimate friends, only thirty copies having been printed. A year later an octavo volume of 464 pages was given to the profession by Chauncey F. Black and Samuel B. Smith, of New York City. It is a compilation made by political and personal friends of judge Field, is an account of his work as a legislator and judge, and gives copious extracts from his many opinions. It is preceded by an introductory sketch by John Norton Pomeroy, and contains also an elaborate article by John T. Doyle, of the San Francisco bar, on the Electoral Commission of 1877, and Judge Field's connection therewith. Here is a pleasant extract from the autobiography, and it may be well to rest at this amusing point in a life that has been so attended with personal peril, or as Judge Field would term it, the fascination of peril. The Judge was at a dinner at Welcker's, in Washington, given by Ward, the celebrity who cuts some figure in the chapter on John T. Doyle: On the occasion mentioned some of the brightest spirits of Congress were present As we took our seats at the table I noticed on the menu a choice collection of wines — Johannisberg among others. The dinner was sumptuous and admirably served. Our host saw that the appropriate wine accompanied the successive courses. As the dinner progressed, and the wine circulated, the wit of the guests sparkled. Story and anec- dote, laughter and mirth abounded, and each guest seemed joyous and happy. At about eight, song had been added to other'manifestations of pleasure. I then concluded that I had better retire. So I said to my host that if he would excuse me I would seek the open air, and I left. Just at this moment Mr. Rodman M. Price, who had been Gover- nor of New Jersey, made his appearance, and exclaimed, "How is this ? I was invited to dinner at eight, producing his card of invitation. "Look again," said Ward, "and you will see that your eight is a five." And so it was. "But never mind," said Ward ; "the dinner is not over. Judge Field has just left; take his seat." And so Price took my place. He had been traveling in the Southern States, and had been an observer of the proceedings of various State Conventions then in session to frame constitutions under the Reconstruction acts, which bodies he termed "Congo Conventions." To the amusement of the party he gave an account of some curious scenes he had witnessed in these con- ventions, and wound up his stories by expressing his opinion that the whole recon- struction measures would soon be "smashed up" and sent to " kingdom come" by the 164 BENCH AND BAR IN CALIFORNIA. Supreme Court. The loud mirth, and singing attracted the attention of news hunters for the press—item gatherers— in the rooms below. Unfortunately one of these gentlemen looked into the banquet room just as Price predicted the fate of the reconstruction measures at the hands of the Supreme Court. He instantly smelt news, and inquired of one of the waiters the name of the gentleman who had thus proclaimed the action of the court. The waiter quietly approached the seat of the Governor, and whilst he was looking in another direction, abstracted the card near his seat, which bore my name. Here was, indeed, a grand item for a sensational paragraph. Straightway the news gatherer communicated it to a newspaper in Washington, and it appeared under an edi- torial notice. It was also telegraphed to a paper in Baltimore. But it was too good to be lost in the columns of a newspaper. The account then shows that Mr. Schofield, member of Congress from Pennsylvania, introduced into the House a resolution directing the Judi- ciary Committee to inquire into this matter, and report whether the alleged offender ought to be impeached. An exciting debate followed, and the reso- lution was adopted by a vote of 97 to 57. Some members stated that they voted for it because it was due to the Judge that he should be vindicated. Judge Field says that he has never been able to appreciate the force of this reason. The committee, before reporting, was discharged from further con- sideration of the matter. CHAPTER XV. Henry E. Highton — A Strong- Original Character — Scion of a Line Distinguished for Mental Activity — Pluck and Patience in Early Tears— A Life full of Achievement- Some of his Great Causes Stated— The Denis Kearney Agitation— A Defence Turned into a, Prosecution — The Impeachment of Mayor Kalloch — The Dawson Injunction Cage of "Church and State" — Public Service on the Bulkhead Question— Commanding Views on Social and Political Problems— A Chapter of Many Useful Lessons. In the Supreme Court at Sacramento, on a day of the June Term, 1866, immediately after the adjournment, one of the judges, passing from the bench into the midst of the crowded bar, took the hand of a young man who had occupied the session with an argument characterized by great force and in- genuity. "Henry, I'm paid now," he said, and his gratification was mani- fest in his voice and countenance. The general eye was on them and it seemed as if the Bench and Bar were then shaking hands. They were representative men, thus face to face in that distinguished place and presence. The judge was Oscar L,. Shafter, the lawyer was Henry E. Highton. One is now no more ; the other is still in the long prime of service. It had been under the eye of Shafter, not yet a judge, that Highton pur- sued his studies in law. And in the man of counsel the student had found, too, a personal friend of rare constancy, "the best friend that man ever had," as he sadly testified some years later, when his friend died. The veteran had watched the tyro's indefatigable quest of knowledge, and it had been his pleasure to open to him the riches of his own store. And now on the occa- sion alluded to, it did him good to acknowledge the satisfaction of an ample reward. Mr. Highton' s career furnishes a fine illustration of the power of labor, when intelligently directed. He came to this country, a boy pioneer, with- out a friend or a dollar, resolved, even then, to make his mark at the bar, and for six years followed a laborious life in the mining region-?. Slowly and carefully, under adverse conditions, he prepared himself for the legal pro- fession, and at the first favorable opportunity entered upon the practice. By the most patient and unremitting effort, he gradually acquired business and repu- tation, pressed steadily towards the front, and finally took his place beside the first men at this bar. He was no child of chance or pet of fortune — he worked his way. In his brave struggles, so signally crowned with triumph, he is to be likened not to one who climbs a ladder but to one who ascends to 1 66 BENCH AND BAR IN CALIFORNIA. the summit of an Egyptian pyramid, and finds beneath him a foundation which trembles only with the quaking of the earth. Henry Edward High ton was born in Liverpool, England, July 31, 1836. On his father's side he came from old Leicestershire lineage, while his mother's family have been settled in Yorkshire for many generations. His father Edward Rayner Highton, was born in Leicester, September 11, 181 1 — a fel- low countryman of our Baker, and born in the same year with that great lawyer, orator and soldier. In his native country the elder Highton held many military and civic positions, and there, as well as in this, his adopted land, his name and fame are inseparably blent with movements for municipal betterment and for the reformation of criminals, especially juvenile de- linquents. In 1866, this gentleman, at the request of friends, gave to the public in pamphlet form, "Some General Observations on Matters of Public Interest, with special reference to the Municipal Government of San Francisco-" Therein he urged the adoption of the ' 'Family System' ' in our Institutions for the reform of juvenile delinquents. He declared that whenever brute force was employed to maintain discipline in a reformatory, it indicated a failure in the system pursued. He took occasion to condemn the now vener- able "Consolidation Act" of San Francisco, as opposed to the Anglo-Saxon spirit, so practical and jealous of governmental interference; the limitations of that act having referred the minute details of municipal government to the State legislature. The effect, he said was not to check fraud; it enlarged the lobby of the legislature, and there was a great deal of legislation hostile to the city. A detective police force, if necessary, he pronounced to be a neces- sary evil, a most efficient instrument of tyranny, the means it uses to discover crime being too apt to encourage the lowest forms of vice. To quote : "Its operations have, therefore, under popular forms of government, been gener- ally limited to tracing out political offenders and the perpetrators of those ex- ceptional crimes which had been planned with unusual sagacity and executed with uncommon dexterity. The pompous mystery which artfully shrouded its operations in former days, to the terror of the simple and the exaggeration of its own importance, has long since been dissipated with many other profes- sional mysteries which are now but subjects for ridicule along with the paro- chial Dogberrys and Bumbles of a past age. ' ' The Highton family name is interwoven with modern English history and English classics. The Rev. Henry Highton, fellow of Queen's College, Oxford, was long a master of Rugbv School, where he was educated, and where his brilliant parts attracted the attention and won the especial favor of the accomplished scholar, Dr. Arnold. He translated the Greek Testament, contributed largely to Nature, a leading scientific journal, became Head Mas- ter of the Cheltenham School or college and won the friendship of . Dean BENCH AND BAR IN CALIFORNIA. 1 67 Stanley, of Matthew Arnold, of the recent Archbishop of Canterbury and of other distinguished men. Another Edward Highton was a celebrated en- gineer, associated with the younger Brunei in the construction of docks in Cardiff, Wales. He distinguished himself in railroad construction in Austria being one of the framers of the Austrian railway system. For some years before his death, he was the telegraphic engineer to the London and North- western Railway. He was author of a work on the telegraph, and many im- provements in the electric telegraph are encomiastically credited to him and his brother Henry (above mentioned) in the Encyclopedia Britannica. John Highton, the paternal uncle oi our friend under review, was a fa- mous classical scholar, rector of a church in Leicester, a grand, good man, whose death evoked popular lament and whose life is commemorated by a shaft of marble, typical of the durability of his influence upon his age. A second Edward Highton is now vicar of Bude, Cornwall. Another relative, Edward Gilbert Highton, M. A., was long a Queen's Counsel in London, He was a contributor to the London Times, and connected with various liter- ary societies. I could recall and record much more under this head, taking my readers through the Peninsular war, opening before them "Stanley's Life of Arnold," handing them volumes of sermons, etc., all in proof and illustra- tion of the intellectual activity of the Highton stem. Henry E. Highton's education was commenced at the school of Rev. J. C, Prince, in St. Anne street, Liverpool. During his stay at that institution he took every prize for classics offered to his class. The intention was to complete his education at Rugby, Where the Rev. Henry Highton was one of the masters, but this was intercluded by his father's emigration to the United States. It was in 1848 when the elder Highton came to America with his son, the latter then aged twelve years. It was the parental wish to consecrate young Henry to the pursuit of law, and nature herself acquiesced in the design. A brilliant career at the bar was to be his destiny, which he seems to have early foreseen, and the youth evinced his aptitude for the science — just as Pope "lisped in numbers, for the numbers came." Said the poet Bryant, alluding to his father : "He taught my youth the art of verse, and in the bud of life offered me to the Muses. ' ' Mr. High- ton may refer to his father with a kindred feeling. By the light of sun, or lamp, or candle, behind the white cliffs of Albion, on the deep, and in the bosom of the broad continent which is the land he loves best, his legal studies, under intelligent parental direction, were never intermitted. His father was never a lawyer, but by his broad reading and grasp of mind was well qualified to teach the young legal idea "how to shoot." I have heard the old gentleman speak, with paternal pride, of his son's early promise, and of the faith in his future which the boy kindled in the breasts of some of Eng- land's learned men. Said the Rev. Mr. Prince to the father, when the latter 168 BENCH AND BAR IN CALIFORNIA. Was about to start with his son for the New World : ' 'Your boy is especially adapted for the legal profession;; why not leave him in England ? I will take charge of him. I feel he will become Iyord Chancellor." It was at Milwaukee, Wisconsin, that the father and son first settled on this side the water. There the young man was placed in the office of a leading lawyer. After a few months the gold fever began to rage through- out the country, and the ambitious and adventurous youth, not thir- teen years of age, started across the plains for California. Not to touch the incidents of his toilsome and eventful trip, he rested, on September 3, 1849, at Weavertown, three miles from Placerville, then called "Hangtown." From that date until the spring of 1856, with the exception of a few months passed at Sacramento, he lived in "the mines," engaged in various occupa- tions, working a great part of the time at actual mining in the placers, like ■ many Others who afterwards attained distinction at the bar. During this period while his character was forming amid shifting scenes, mushroom settlements and anomalous communities, he kept his mind and heart on the law, study- ing it in a desultory way, but not altogether without system. Mr. Highton came to San Francisco in 1856, being then twenty-one years old. He came without means, and knew no one here except Dr. C. C. Knowles, the dentist, who took great interest in him and showed him much kindness. Shortly after the organization of the Vigilance Committee of that year, he became a friend and associate of the late Frank Soule, who, with William Newell, owned the then San Francisco Chronicle, which died a few years later. He was made first reporter on that paper, after the fashion of those days, his duties being afterward enlarged. He gathered local items, report- ed law proceedings and public meetings, and condensed news from interior journals and from Eastern, Australian, and Chinese newspapers, which ar- rived in large batches. After two or three months of this service, he wrote leading articles for the old Chronicle, contributing also to the Golden Era and the Spirit of the Times. During the legislative session of 1859, he was the Sacramento and legislative correspondent of the San Francisco Herald, and after the close of the session wrote for that paper a series of articles on the manu- facturing interests of San Francisco and upon other topics. Meanwhile he pursued his law reading at night. Then he devoted himself entirely to his legal studies for one year, and, on, July 3, i860, he passed his examination and was admitted to practice by the Supreme Court, on the report ol a committee composed of General Thomas H. Williams and John B. Felton. He answered correctly every question, in- cluding the catch query or pons asinorum: "What is the difference between the undivided moiety of the whole and the whole of an undivided moiety?" By the advice of Oscar I,. Shatter he commenced the practice of law at Sonoma, then just incorporated. In the fall of i860 he returned to San BENCH AND BAR IN CALIFORNIA. 1 69 Francisco and began law practice there. In 1861 Mr. Shatter (who had not then been on the bench) visited the East, leaving to Mr. Highton several important causes to try in the District Courts, under the supervision of James McM. Shafter and Judge Heydenfeldt. In 1862 Mr. Highton was, for a few months, in partnership with Judge O. C. Pratt and the late H. K. W. Clarke. To the latter's widow, a lady of remarkable intellect and attainments, whose latter years were attended by great physical and mental suffering, he subse- quently rendered important services. For a few months, also, in 1864-5 he was in partnership with William P. Daingerfield and J. Douglas Ham- bleton. These were his only partnerships. Afterwards, for a year or more, he was employed specially in certain matters by Hall McAllister, who became his warm and constant friend. He is much indebted to Mr. McAllister for his introduction to general practice. At times, his successful conduct of great criminal cases has left an impression on many that his specialty is that branch of the law. But he, like McAllister, has no specialty. Indeed, he has no fondness, although great fitness, for criminal business. He has repeatedly refused to take part in the prosecution of a capital case, and has made this a rule of his profess- ional life. Mr. Highton has never held, or aspired, to a public office, or been a mem- ber of a political convention ; yet he has great public spirit, which has been often signally displayed, as will be seen. In i860, the late John B. Felton, and Devi Parsons (the latter had been a District Judge in San Francisco), attempted to secure the passage by the Degislature of what was known as the ' ' Bulkhead Bill. ' ' The proposed measure would have given the whole water front of San Francisco to a corporation of French capitalists, represented by the then powerful firm of Pioche, Bayerque & Co. (See the chapter on John B. Felton.) The boldness and magnitude of the scheme alarmed the metropolis. A " Citizens' Anti- Bulkhead Committee" was formed, with Lafayette Maynard as chairman. Mr. Highton joined this body, and was forced by circumstances and the partiality of friends into a prominent position. He wrote the memorial to the Legislature, the address to the senate, and various other documents against the measure, contributing to the local press many articles on the subject, which were published as ' ' leaders. ' ' After the mission of the com- mittee was accomplished by the defeat of the bill, he prepared the congra- tulatory address to the people of the State, of which many thousands of copies were distributed. The committee, through Mr. Maynard, presented to him a fine gold watch, " as a mark of appreciation of his services against corrupt legislation." At the next session of the legislature the bill passed both houses, but was killed by the vote of Governor Downey. Shortly after- wards the Governor visited San Francisco, and the people turned out en tlo BENCH AND BAR IN CALIFORNIA. masse to receive him. A torchlight procession escorted him to the old American Theatre (where the Halleck block now stands), and there Mr. High- ton presented and read the resolutions drawn by Hon. W. J. Shaw and ac- companied them with a vigorous speech. He was the author of the resolutions read and adopted at the great Union mass meeting at the corner of Montgomery and Market streets in San Fran- cisco, in April, 1861. Several other prominent men had submitted resolu- tions to the committee having the meeting in charge, and some of them were very lengthy. Mr. Highton's draft was preferred, and I give it here as a happy example of condensation and exact expression : Resolved, That the full and fair development of American civilization, and the ■extension of civil and religious liberty throughout the world, require the perpetuity of the American Union and the protection of the American government against any and all assaults, whether of foreign or domestic foes. Resolved, That the allegiance of an American citizen to the federal government is superior to all other obligations, and binds him in law and in honor to aid in the sup- pression of rebellion and in the enforcement of the laws. Resolved, That in the present crisis in the history of our country, our reason, our hearts and our arms are with the constitutional authorities of the land, and that we pledge ourselves now and in every emergency to stand by the Union of these States and the government which has been instituted for the perpetual preservation of that Union in peace and in war, without reservation, qualification or condition, and at any sacrifice of life or property. After the anti-bulkhead victory, Mr. High ton was urged by Lafayette Maynard and others to run for the State senate, but he told them he wanted no office, and the best service his friends could render him was to send him law business. In 1862 he delivered the annual address before the State Agricultural Society. In 1864 he made several elaborate public speeches in support of General McClellan for the presidency, which were published substantially as delivered, and which dealt mainly with financial and constitutional questions. In 1865-6 he wrote various articles and documents against the reconstruction policy of the Republican party, holding that the war had been conducted on the theory, to which he assented, that the federal Union and the States were legally indestructible, and that when the war ended, the legal status of the Southern States remained unchanged. The first use of the term ' 'rehabilitation' ' in this connection is attributed to him. He declared that rehabilitation, and not reconstruction, was the proper policy. In 1869 he delivered the Fourth of July oration at the California Theater, San Francisco, when Governer Seward was present, and a happy allusion of his to the distinguished guest caused the whole audience to spring to their feet and break into cheers. In 1870 he delivered the Fourth of July oration at Stockton. Both of these last mentioned addresses were strictly non-partisan, and were well received by the entire press. BENCH AND BAR IN CALIFORNIA. 171 In 1874 Hon. John A. Stanly, then County Judge of San Francisco, charged the grand jury to investigate the matter of the failure of Mayor James Otis and Treasurer Charles Hubert, to count the money in the county treasury, as required by law. This was regarded by many as an attack upon the Mayor, and a public indignation meeting was held, at which strong reso- lutions were passed supporting the Mayor and condemning Judge Stanly. A noteworthy incident of the occasion was the appearance of honest old Monroe Ashbury, who had been invited to speak, but who surprised the assemblage by openly indorsing the County Judge. A few days later an immense public meeting was held to express approval of Judge Stanly's course. Two-thirds of the taxable property of the city was represented, and a majority of the leading lawyers and of the judges on the bench were present. Mr. High ton was the speaker of the evening, and his address was enthusiastically received. Resolutions were passed sustaining Judge Stanly, and demanding the return to the treasury of about a million and a half dollars which had been deposited in a private bank by the Tax Collector. Within a day or two thereafter, the money was returned, with the exception of between two and three hundred thousand dollars, which was subsequently lost. Mr. Highton was an early opponent of Chinese immigration. He took a firm stand on this question in 1857, and at various times since has given public expression to his views. After President Arthur's veto of the Chi- nese bill Senator Ingalls, of Kansas, who had voted against the bill, addressed a letter to a gentleman of this city, in which he expressed his sentiments on the Chinese question, and declared that the vetoed bill was a deliberate affront to a great nation. The letter was handed to Mr. Highton, who wrote a lengthy reply to the Senator, which was published and widely read. While holding tenaciously to the policy of Chinese exclusion, he is yet un- compromisingly opposed to all violence to Chinese residents. He has said strong things against the Chinese, but has also declared that the whole pow- er of the government should be employed, if necessary, to prevent the slightest personal harm to the Chinese among us, or the invasion of a single one of their legal rights. While acknowledging that the working classes have long had .good cause for complaint against corporations and capitalists, he yet firmly op- posed the movement under Denis Kearney. He successfully defended John Hayes for throwing Kearney from the platform at Piatt's Hall, at a meeting called to consider the relations between the city and the Spring Valley Water Works. This was a long and exciting trial. It was admitted that Hayes did assault Kearney as a matter of fact, but Mr. Highton maintained that the act was committed in defense of the rights of popular assemblage and free speech, and supported his position by many historical and judicial precedents. He has always regarded his six years' labor in the mines as of incalcula- ble benefit to him, and credits it with his physical development. It embraced 172 BENCH AND BAR IN CALIFORNIA. the plastic period of youth, made him an American at heart and imbued him with a vital sympathy for the working classes. He believes that men's lives are valuable in proportion to the amount of useful work which they do. He thinks that American civilization is the highest, and that the American sys- tem of government is the most potent to produce the best results. His faith in the people is thorough and profound. He and the late Judge Lake, both Democrats, opposed the action of the San Francisco League of Freedom in its aim to obstruct the old Sunday law ; they held such action to be anti- Ameri- can and illegal, because the law whether right or wrong as a political measure, had been declared constitutional by the Supreme Court. Mr. Highton spoke on the subject at Piatt's Hall. He has been a member of the Democratic State Club since its organization, but has little to do with party manage- ment, except in his own way, which is particularly independent. He is Jef- fersonian, strongly sympathizing with that class of Democrats not numerous in large cities, but to be found in force in agricultural communities. He is an open enemy to the machine politicians. He is thoroughly identified with the anti-monopoly principle within the Democratic party, and effectually contributed in the year 1882 to the intro- duction of that principle into the platform of his party and the political can- vass. He made no speeches, but wrote a "Declaration of principles," and a letter to the delegates to the State convention, of which many thousand copies were circulated. He wrote the platform adopted by his party club and approved by other clubs, and which was a vigorous and manly protest against monopoly and bossism. To the same end he has steadily and consistently used his influence personally with his large acquain- tance throughout the State. He is recognized as distinctively Californian, with the Western habit of thought, and a strong love for his State and country. He is a life member of the California Pioneers. In August, 1874, Mr. Highton married the secoud daughter of the late P. M. Scoffy, long a merchant in New Orleans and San Francisco, who died highly respected and much beloved, in 1875. His wife is an amateur artist of decided merit. She has painted a number of fine pictures, one of which, a large painting of Mount Shasta, was exhibited at the the rooms of the Art Association. He has no children. He is a member of the Episcopal Church, and a constant attendant at Trinity. He has no patience with infidelity, or atheism, and has frequently spoken in favor of religious organizations, outside of his own church. Mr. Highton has tried, either alone or as leading counsel, many import- ant cases in every branch of his profession, especially jury cases, but he prefers controversies involving intricate commercial questions. He once kept a set of books for three years in order to know how to comprehend accounts. There are leading cases of his in the Supreme Court Reports, in which his name BENCH AND BAR IN CALIFORNIA. 1 73 ■does not appear, because he was employed as counsel and was careless about getting bis name into the published volumes. In his early practice he wrote many briefs for other able lawyers. No less a man than Delos Lake said on one occasion : ' 'A legal opinion from Mr. Highton has as much weight with me as a decision of the Supreme Court. ' ' Here are some observations upon Mr. Highton' s intellectual qualities — an interesting compendium, kindly furnished me by his father : "From earliest days lie was remarkable for his persevering avidity to know, and for his logical deductions. The first intimation I had of his being able to read was when he was about five years old, when he read to me with ease and perfect, intelligent intona- tion, an article in Chambers' Journal. I was in favor of retarding his precocious intel- lectual development, but with some 'letter blocks' which were in the nursery, and some miscellaneous scraps and simple books, he had acquired the art of reading, with no other aid than the occasional attention of a relative, who assisted him to get rid of his impor- tunities. "He was an inchoate lawyerfrom his infancy. Tenacious, argumentative, quick in ap- preciation of points, and detection of fallacious sophisms '; clear in conception and rapid in generalization ; impatient of injustice, but cautious and wary" to correct. His desultory education was rather an advantage. The trammels of a system would probably have re- pressed some of his best qualifications as a forensic lawyer, and the danger which might iave been apprehended was averted by his acute and minute observation of details, which is remarkable. He has one of the most retentive and capacious memories, which, with his quickness of application, supplies him with an unusual fund of resource in difficulties. A , 'legal' client, for he had been constantly 'at law' with somebody, and who was also a "very successful speculator and financier, once told me, that, in all his experience, he had never found a lawyer with so many legal resources. His forte, if he can be said to have ■one, where the aptitude is so general, is in simplifying complicated details, whether in mercantile transactions, or in analyzing circumstantial evidence. His greatest fault is in a sometimes almost wearisome exhaustion of legal points, but he is never garrulous. He is chivalrously faithful to his clients, and, in fact, fidelity is a prominent characteristic in all his relations with others. He has an unusually well balanced mind. Mr. Fowler, an eminent phrenologist, ■who came to examine heads in an institution under my charge, told me, after examining him, that he had the best balanced head, according to the principles of phrenology, that he had ever examined. The only dominating indication being 'love and approbation' and 'self-esteem,' which he said might be a useful lever in the direction of his mind. Let me preserve here a condensed history of the celebrated impeachment case of Mayor Kalloch, in connection with some others of the many remark- able cases Mr. Highton has tried in our courts. In the fall of the year 1879, Rev. Isaac S. Kalloch, pastor of the Metro- politan Baptist Church, was elected Mayor of San Francisco under very ex- traordinary circumstances. Local politics were then strangely complicated. Three party organizations contended for municipal control— Republican, Dem- ocratic, and Workingmen, the last named having, for a brief spell, absorbed the bulk of the Democracy. The Republicans elected their candidates -with the exception of their nominee for Mayor. The Board of Supervisors 174 BENCH AND BAR IN CALIFORNIA. was unanimously Republican, but Kalloch was chosen to preside over them as Mayor by the Workingmen, with the help of independent voters who sympathized with him in his sufferings, he having, a few weeks before, been shot and seriously wounded by Charles De Young, senior proprietor of the San Fran- cisco Chronicle. The minister Mayor, at the time of his election, was lying prostrate from the effect of his wound. After his recovery and induction into office he continued to be, as he had been for a year previously, a bold and eloquent, if not a reckless and defiant, advocate of the Workingmen's cause. Throughout his official term there was unrelenting hostility between him and the Board over which he presided. The city was agitated over the long and violent controversy, the poorer classes— the army of the discontented, not to say lawless — rallying around and applauding the Mayor, who, like his coadjutor, Dennis Kearney, constantly fulminated against wealth and aristocracy. That was a critical time in the city's history. Kalloch from his pulpit, Kearney from his sand-lot platform, and the press from its broad vantage ground of view, long kept the public heart in ferment. Turbulent meetings were frequent, bodies of idle men paraded the streets by day, a large element of the population was on the eve of open revolt against social order, threatening alike with mob violence the palaces of the* rich and the dens of the Chinese. Trade was in great measure paralyzed, property values depreciated, and capital became thoroughly alarmed. For this state of affairs the Board of Supervisors, and behind them, perhaps, one-half the population and the bulk of the mercantile community, held Mayor Kalloch largely responsible, by reason of his frequent and vio- lent public utterances. It was determined by the Board to take official notice of his course. At its meeting, April 28, 1880, the judiciary committee pre- sented a lengthy paper recommending that judicial proceedings be instituted to have the Mayor removed from his office. To condense this document, it set forth that the Mayor had exhorted and advised the lawless and discontented elements to form processions and parade the streets ; that he had threatened mob violence to individuals and insurrection against the laws; that under the pretence of counseling the vicious and turbulent against mob violence, he had insidiously advised them to be in readiness for bloodshed and the over- throw of lawful authority. ' 'To report the language used by Isaac S. Kal- loch, Mayor, would render it necessary to embody the whole of all his pub- lic addresses, for after a very careful and critical reading and analysis of the language used, both in public speeches and official communications, we find," said the committee, ' ' abundant reason to express our regret and the public indignation at his conduct while filling the position to which we believe an un- fortunate occurrence elevated him, and in which position his example and in- fluence have been and are more heinous, prejudicial and injurious to this community than those of the brutal and degraded persons who have been BENCH AND BAR IN CALIFORNIA. 1 75 arrested and convicted for the unlawful acts which he aided and abetted. ' ' The paper was throughout dressed in words of most scathing denunciation. The resolution calling for the Mayor's impeachment was put by him from the chair without remark and without any manifestation of feeling, and was adopted by a unanimous vote. There were two methods of removing public officers — one by summary process, the second by indictment. Under the latter no officer had ever been pursued in San Francisco, while under the first mode, a City and County Assessor and a Coroner had been removed from office. This method, adopted by legislative act in March, 1874, and afterward expressed in a section of the Penal Code, provided that when a complaint in writing, and verified by oath, is presented to a District Court against an official for viola- tion of law, the Court shall cite the accused to appear in not less than five nor more than ten days and at some time not more than twenty days from the date of filing the complaint, the Court shall proceed to hear the evidence upon the accusation. If the complaint is sustained by the testimony, a decree shall be entered removing the accused from office and giving judgment for the complainant for $100 and costs. This was the mode of proceedure adopted in the case of Mayor Kalloch. One week after the Board of Supervisors had resolved to take action against the Mayor, as stated, a mass meeting of sympathizers with the latter was held, which was largely attended and illuminated by bonfires. At this meeting a score of prominent citizens figured as officers and speakers and a vigorous letter from Henry George was read, but perhaps four-fifths of the large audience belonged to the "sand-lot" element. Resolutions extravagant in express- ion, were adopted with one voice, wherein the Board of Supervisors was denounced as ' ' partisan and corrupt, ' ' while the party chiefly concerned was styled ' ' our worthy and honored Mayor, the most upright, honorable and just official that has ever presided over the municipality of San Francisco." The character and temper of this meeting, were reflected best, per- haps in certain resolutions (not the regular series just referred to) offered by one O' Deary which were adopted amid lusty yells. To make them intelligent it must be stated that Dennis Kearney, the "Sand-lot" apostle, and founder of the Workingmen's Party of California, had recently been imprisoned for the use of incendiary language, his sentence by the Police Court having been affirmed by a judge of the Superior Court. The Supreme Court afterwards discharged Kearney. O'Deary's resolutions will be found diverting, if not coherent : " Whereas, When the bloated and sensual lecherer becomes gorged by his debauch- eries, his foul imagination still remains as an appetizer to desire, and in order to appease his sensual cravings, he turns his foul, soul-destroying gaze on the holiest and purest objects ; and 176 BENCH AND BAR IN CALIFORNIA. Whereas, We recognize the incarceration of Dennis Kearney as an outrage on truth and Justice and on everything that is made holy and sacred by Constitutional rights and privileges, and tradition springing from the genius of our institutions ; there- fore be it Resolved, That we, the citizens of San Francisco in mass meeting assembled, look upon the blind goddess of this city as nothing more than a vile strumpet, who has yielded to the sensual embrace of political thieves and panderers to the unholy ambi- tion of corporation nobs. Resolved, That we solemnly protest against the longer retention of Dennis Kearny behind prison bars, for we look upon his imprisonment as unconstitutional and unwarranted and we pray that the Supreme Court will loosen his bonds and let him walk forth a Tree citizen." Three days later the complaint to remove the Mayor from office was filed in the Superior Court. It was signed and verified by citizen J. A. Cool- idge ; the special counsel engaged by the Board of Supervisors to prosecute the case being Darwin & Murphy, and W. H. I,. Barnes. The document was lengthy, and its specific charges were that the Mayor in his inaugural address, did wantonly, maliciously, and without cause or reason, impeach the honesty and integrity of the people of the city, by the use of the follow- ing language : ' ' The people expect their officials to steal. * * * They are disappointed if they do not. If a man passes through the fire of official temptation unscathed, and comes out poor, he will get his reward from men from whom better things might be expected, in the sarcastic reflection, 'You were a fool not to make better use of your opportunities. ' There must go with this another reflection equally mortifying to our pride, and equally un- pleasant for me to make, that we are, perhaps, the only civilized community on earth where it is absolutely no bar to a man's social recognition or respect- ability for it to be known that he has stolen himself rich;" that, thereafter in a public speech while Mayor he said: " The people of this city have be- come so utterly demoralized that they attribute a mercenary motive to every man's action when it does not suit them ;" that he had advised the forming of processions and parading the streets by a class of turbulent men who had assembled for unlawful purposes, and which class in public meetings used language blasphemous, incendiary, and calculated to provoke a disturbance of the peace ; that he had at divers times " endeavored to encourage and incite certain persons to keep and maintain themselves in such a manner as to be able to commit an outbreak against the law whenever he should so advise ;" that he had falsely accused various branches of the city government of dereliction of duty and corruption in office, for the purpose of weakening their influence and destroying their efficiency, so that he might strengthen his own power for the accomplishment of his own unlawful ends, and his private purposes; that he had incited the poor to mob violence against individuals, and to insurrection against the state and national governments; that on one occasion he told his followers at one of their public meetings, that BENCH AND BAR IN CALIFORNIA. 1 77 he was "powerless to help them," and exhorted them to" do no illegal thing until you hear from me again. ' ' Great stress was laid upon this last expression of the Mayor by those prosecuting him, as showing that he was liable at any moment to head an outbreak against the laws, while his friends insisted that it only signified that if the discontented classes were determined upon disorder or, to use a larger word, revolt, or, a yet larger word, revolution, he charged them to listen to him in a final appeal, before they "crossed the Rubicon." The complaint further averred that the Mayor had willfully violated certain statutes of the State, passed for his official government and control, in that he asked and recieved "emoluments, gratuities and rewards," for obtaining positions for divers persons in various city offices, making for himself thereby ' ' extortionate gains and profits, ' ' and that, in willful viola- tion of such statutes, he demanded and received " free passes" from railroad companies. On behalf of the Mayor, Mr. Highton, as his leading counsel, fought this proceeding with characteristic zeal and tenacity. His first movement was a motion to the presiding judge of the Superior Court, to transfer the case from the department to which it had been assigned, to the tenth depart- ment of the court; this court having twelve judges, sitting separately in as many departments. His motion was based upon the grounds that the case was, in legal definition, a ' 'special proceeding, ' ' and the court had establish- ed a rule that special proceedings should be heard before the tenth depart- ment. This case had been assigned to the fifth department, whose province (not by statute, but by court rule and practice) was to hear and determine equitable cases, actions on contract, for damages, and divorce. The motion to transfer seemed reasonable and proper. Its true ' 'inward- ness," however, was probably dictated by professional strategy, as the judge of the tenth department had been elected to his office by the aid of the full Workingmen's Party vote, while the judge of the fifth department was a strofig opponent of that organization. The motion was denied — the Mayor's enemies deriving much amusement from what they called Mr. Highton's at- tempt to " pick his own judge." Mr. Highton next asked that ihe case be heard in bank and that there be a full bench. This application was denied on the grounds that there was no power in the presiding justice or elsewhere to compel the attendance of the judges, and that any one judge might prevent a trial by absenting himself; but it was ordered that the trial should proceed before as many of the judges as could be induced to attend. Accordingly, Mr. Highton having meanwhile presented a written demurrer to the com- plaint, five of the twelve judges — Cary, Halsey, Sullivan, Ferral, I^atimer — assembled, May 27, 1880, to hear and determine the case. The public atten- dance was very large, and the proceedings drew the notice of many other communities. Mayor Kalloch was present, lounging in a chair with eyes 178 BENCH AND BAR IN CALIFORNIA. 1 closed most of the time — his appearance and bearing thus strikingly contrast- ing with his impetuous nature. On behalf of the defendant, Mr Highton made the point that the Court did not have jurisdiction over the case. The law under which the proceeding was instituted, clothed, in express terms, only District Courts with authority in such cases. A new constitution of the State had recently been adopted, wherein it was provided that the District Courts, all of which it abolished, should be succeeded by Superior Courts having the same jurisdiction. Mr. Highton argued that the law aforesaid (statute of 1873-74), was annulled by the new constitution, which instrument abolished the Courts to which it applied — that the powers of the District Court, touching this proceeding, had not been transferred to the newly created Superior Courts ; that the section of the new Constitution relating to the impeachment of officers, was not- self-executing, and required legislation to put it in operation. That the acts of the Mayor set forth in the complaint were not official acts, but were committed by him, if at all, as an individual. The charges were : i . Incendiary language ; 2. Corrupt procurement of places in city offices ; 3 Accepting free passes on railroads. Mr. Highton argued that to effect the Mayor's removal from office for these acts, he must first be indicted for crime and convicted by a jury. He read a list of the statutes relating to the office of Mayor, showing all the duties imposed by law upon that office, and contended that no act complained of was a violation of official duty ; that a broad line must be drawn between official acts and private acts. The Mayor might commit burglary and yet he could not be removed from office for that act by summary process. His removal might follow a conviction of crime, but the Act of 1874 only contemplated misdemeanors committed in the actual performance of official duty. He cited the case oiex-parte Harrold,(47. Cal. 149.) in which the Court held that a County Clerk who refused to comply with a law requiring him to reside at the County seat, did not thereby neglect an official duty. The leading opposing counsel against Mr. Highton, at the close of the latter' s argument on this especial point (Gen. Barnes ) suggested that "as much stress was laid upon the question of jurisdiction it might be well to have that question determined in the first instance. ' ' After a recess Gen. Barnes replied to Mr. Highton, and the latter briefly closed the argument. After consideration between the Judges, the Court announced that: "The demurrer on the point of jurisdiction was overruled, and we will proceed to-morrow on your second point. " The second point was this: That the acts complained of, were not committed by the Mayor in his official capacity; if at all. After further argument the Court, four of the five judges concurring, sustained Mr. Highton's position and dismissed the -proceedings, thus establishing the rule that the language of the statute is to be BENCH AND BAR IN CALIFORNIA. 1 79 confined to the neglect of official duties. Judge Latimer dissented on the ground that Section 19 of Article xn of the Constitution, (declaring that accepting of free passes on railroads by any public officer should work a forfeiture of his office) was self-operative. Kalloch died in Washington Territory in 1887. He had left the ministry and become a lawyer. In the case of Dawson vs. Scott et al. , the plaintiff, Rev. T. Madison Dawson, was pastor of a Presbyterian church in East Oakland, Alameda County, California. He suffered through an affair of the heart, and had the good sense to withdraw from the ministry. His withdrawal, which was in the shape of a letter to the Moderator of the Presbytery, was unanimously accepted by that body and his name was erased from the roll of ministers. Thereafter the Presbytery sought to arraign and try him on charges of immoral conduct. He refused to appear, and applied to the Nineteenth District Court (E. D. Wheeler, Judge), for an injunction restraining the Presbytery from taking any proceedings against him. An interesting conflict followed between ecclesiastical and civil authority. The Presbyterian Church is an incorporated association of persons united for religious purposes, under an established system of discipline and government, prescribed in 182 1 by the General Assembly of the Church. The perpetual officers are bishops, pastors, deacons, and elders, and the church is governed by subordinate councils under the General Assembly. The Presbytery is the second council in the order of progress from the church body to the General Assembly, and a quorum of its members consists of three pastors, and an unlimited number of ruling elders. It has power to remove and ordain, to admonish, suspend and depose ministers. Where a scandal is loud and action imperative, the Presbytery may be called together by anonymous complaint. While the Presbytery has jurisdiction over ministers, the body of the church deals with members. When an accu- sation against a minister is filed, he is cited to appear. If he refuses to appear he is cited a second time ; if he still refuses to appear, he is suspended and cited a third time. Still refusing to respond, he is deposed. No appeal can be taken to the General Assembly, when the accused has failed to appear. On August 7, 1875, Dawson aforesaid withdrew from the ministry as stated. On August 23, 1875, he was anonymously accused before the Pres- bytery of grave offences, ' the accusation being presented over the name of *' Common Fame." He then applied to the Court for an injunction against the Presbytery. Mr Highton wrote the complaint and conducted the case. Ex-Governor Haight, who belonged to that church, appeared for the Presby- tery. The complaint alleged that great publicity attached to investigations before the Presbytery — that the numerous newspaper organs of the church 180 BENCH AND BAR IN CALIFORNIA. published full proceedings, and the daily press also ; that if the Presby- tery was allowed to try the plaintiff and pass judgment upon him, his standing in the community would be depreciated, and it would be difficult if not impossible for him to obtain a livelihood — the "Common Fame" indict- ment charging him with most unseemly behaviour and the grossest immor- ality. Mr. Highton on the hearing, argued that the charges involved moral turpitude, and not questions of theological faith or discipline ; they were not ecclesiastical, but affected the character of the individual ; that the action of the Presbytery was arbitrary, and that that body arrogated to itself the functions of a civil tribunal. The counsel dwelt with emphasis upon the admitted fact that Dawson had withdrawn from the ministry, and his name had been struck from the church rolls. He declared that Dawson was a stranger to the Presbytery, as much so as anyone outside of the church; and that there was no instance of an ecclesiastical body usurping and exercising jurisdiction over strangers. Religious societies were ame- nable and subordinate to the Courts — as much so as the Masons, Odd Fel- lows, Red Men and the social clubs. Gov. Haight, for the Presbytery, contended that it was an unheard of thing for a Court to interfere with ecclesiastical authority in matters of church discipline. He appealed to the well defined principle of law that an action could not lie to prevent libel or slander. The redress for slander or libel was an action for damages. The Presbytery had a perfect right to try Dawson, notwithstanding his resignation. The government deals with man's body and estate, but not with his religion. If the Presbytery wanted to try Dawson against his wish, and when he was no longer a minister of the gospel, it was its exclusive privelege to do so, and no civil tribunal had any right to interfere. Mr. Highton replied that the case before the court involved civil rights; that a man's reputation was his property. "Suppose," said he, "that the Presbytery would prefer charges against me, and I refused to respond, and they tried and convicted me. No matter what my standing in my profession might be, I would be a ruined man. Is it not a monstrous doctrine that the courts could not protect me? — that the separation of Church and State is so complete that the courts could not interfere and save me from outrage?" Counsel insisted that there was noquestion of conscience before the Court, but the question was one of property. He insisted, and quoted authorities to show, that reputation was property. The injunction against the Presbytery was granted by the Court and the matter there ended, no appeal being taken. Dennis Kearney, the San Francisco agitator, and father of the Working- men's Party of California, which sprang up in 1878, and lived a couple of years, inaugurated his long continued agitation by a speech in Dashaway BENCH AND BAK IN CALIFORNIA. l8l Hall, San Francisco, Wednesday evening, September 7. 1877. The first " Sandlot " meeting was held on the spacious open grounds near the City Hall, on the following Sunday. Kearney was the "Orator of the day." "It is said in some places that I made myself heard," declared Dennis, in a note to a San Francisco daily paper, March 6, 1882. The communistic feeling, which is rooted in a large element of our population, found savage expression in San Francisco, in July, 1877, under the stimulus of unusually hard times. The local riots of that month were only suppressed after the law and order elements of society had organized under the generalship of the Mayor, and in addition to their moral weight, had given physical support to the police on the field of actual encounter. Many entertain the belief that Dennis Kearney was the in- stigator of those riots; but as it has been just observed, he began his career as an agitator Sept. 7. 1877, whereas the riots occurred two months earlier. So that really Kearney was the creature, instead of being the author of that agitation, albeit his is the central figure as we look back to those troublous times. For several years Kearney, by his harangues delivered almost nightly to turbulent and applauding multitudes, kept San Francisco in a ferment of excitement, some of the effects of which were to frighten away millions of capital, to paralyze many industries, and if not to make the rich richer, certainly to ' ' make the poor poorer. ' ' Proclaiming against the despotism of capital, he was ready to enthrone the tyranny of the mob. Insisting upon, and freely indulging in, ' ' free speech, ' ' he boldly denied that privilege to all who stood in his way. So violent became his public utterances, and so threatening to civil order was the conduct of his army of followers, that the legislature, in re- sponse to popular appeal, passed, and the Governor approved, a bill punish- ing the abuse of free speech, which measure was styled the ' ' Gag I^aw ' ' by those for whose amendment it was designed. On one occasion, Kearney declared from the platform in a public meeting, the chairmanship of which he had usurped, that ' ' no politician in office shall speak at a meeting at which I preside. ' ' In the spring of 1878, as, indeed, for several years prior and subsequent, the people of San Francisco were disturbed by the question of water supply. The prices for water fixed by the Spring Valley Water Company, which supplied the various departments of the city government and the great bulk of the inhabitants, were generally regarded as excessive. Among the pro- positions discussed for the adjustment of the difficulty was one to condemn and purchase all the works and other property of the Spring Valley Company. The belief becoming general among tax-payers that if this were done the ' Company would be paid millions of dollars above the value of their property, a loud popular protest went up against the proposition. On March 16, 1878, 1 82 BENCH AND BAR IN CALIFORNIA. at two o'clock in the afternoon, a large public meeting was held in Piatt's Hall to express the popular opposition to the proposed purchase. The meet- ing was called by several citizens, none of whom, take note, had any affili- ation or sympathy with Kearney or the so-called Workingmen's Party. The attendance was very large. The committee of arrangements had selected Monroe Ashbury for President. Mr. Ashbury was an old citizen, univer- sally honored, and had held several important local offices ; but he was not the right man to meet the unforeseen crisis which was at hand. He was both honest and firm, but his firmness was that of a man of peace. He could not be driven from any position which he had deliberately taken, but he was too slow and deliberate in taking position. He was the imprudent selection of the committee. The occasion called for a bold Captain with a heart of oak. In the felt presence of such a man the disorderly scenes to be noticed would not have been. The meeting, for some unexplained cause, was not called to order until a quarter of an hour after the appointed time. The hall was full and the audience restive, especially that portion composed of Kearney's contingent, present in large force. The chairman of the committee proposed Mr. Ash- bury for President and declared him elected. Mr. Ashbury was present, but just then there were loud calls for Kearney, who took the platform, and Mr. Ashbury did not appear. Before Mr. Ashbury had been proposed, Kearney had taken the platform in response to calls, but left it at the request of the committee in charge. There is hardly a doubt that if Mr. Ashbury had been nominated earlier, had promptly responded, and had exhibited a firm atti- tude, all would have been well. But, as he afterwards testified, he consid- ered the meeting had been packed, that its objects had been defeated, and he declined' to serve as chairman. This unfortunate decision left the resolute intelligence of the committee represented at the meeting without a leader ; and, seizing its opportunity, the Sand Eot instantly asserted sway. Kearney himself put the question as to whether he should be president. A loud re- sponse went up from his men, massed in the center ot the hall, and he de- clared himself elected. Several speeches then followed, one of them being made by Rev. H. Cox. (Mr. Cox; State Senator, Edward Nunan, and Eugene N. Deuprey, then a rising young lawyer, had been selected by the committee as the speakers of the occasion). Senator Nunan next presented himself and was introduced to the assemblage by Rev. Mr. Cox. Kearney then declared that Nunan should not speak — that no politician in office should speak at a meet- ing at which he, Kearney, presided. Bedlam then broke forth, and a general row was only prevented by the police who made several arrests. During the dispute between Kearney and Nunan as to the latter' s right, or rather power, to speak, Mr. John Hayes, an old citizen, one of the family after whom BENCH AND BAR IN CALIFORNIA. 183 Hayes Valley and Hayes Street were named, went upon the platform and said to Kearney, " If you do preside over this meeting, you don't run it." Then, getting behind the ' ' President, ' ' he pushed him off the platform into . the music stand. Hayes was arrested, and Kearney and Nunan continued their dispute with voice and gesture for twenty-five minutes. Finally, Nunan was prevailed upon to retire, in the interest of peace. After a short speech from a legal light of the Sand I proper reasoning. He kept his subject and his object continuously before him, and> though his faculty for combination was so great that he could be rarely anticipated, he never sat down until every point he sought to make was definitely and completely re- vealed. In the mixed science and art of pleading he became almost as profound as Gould, the condensed Chitty of America. And, having thus explored the channels through which the law flows, he carried his explorations to the very source from which they were fed. He was no "case lawyer" — that half-made up creature of the modern codes — but a lawyer so full in his knowledge and so accurate in his conception of principle, that the cases were the mere filling-in of his arguments. He worked steadily, and prepared systematically for the numerous trials in which he was engaged, but he relied on the merits of his cause, and scorned the petty stratagems and bald pretences, through which genuine capacity is so often counterfeited. He possessed remarkable continuity of thought, and was capable of perfect abstraction when examining a legal question. He wrote with order, perspicuity, and facility. His early opinions, when on the fcupreme Bench, exhibited the superiority of his integrity to all partisan influences, and also, per- haps, to too great an extent, the extreme nicety of his analytical faculty, but he soon ac- quired a terse and pointed judicial style of composition, which is a model for his success- ors. He was a man who had little regard for reputation, which is usually determined by mere accident, caprice or prejudice ; but he had much regard for character. He was not "careful for the shadow of a great name." His thoughts ran far below the shallow pol- itics of the day, and the false issues upon which partisans are frequently divided. He was disgusted with the corruptions of party, and he fully appreciated — what his own life and death so clearly demonstrated — the shortness of the public memory and the illusiveness of popular favor. To legislative honors, therefore, for which he was often pressed, he would not aspire ; and though he would have restored to the Senate of the United States something of its ancient renown, he never cared to go there. He coveted no dignity, even in the line of his profession, and he ascended the Supreme Bench with unaffected reluctance. There was in his nature a rich vein of romance, and heroism. He was constitutionally fervent, but was schooled to self-repression and to the casual acquaintance or superficial observer, betrayed little of the real treasures of his intellect and heart. But let him read to an appreciative friend, or among his own relatives, some story of disinterested sacrifice, or noble daring, and his eye would glisten, and his voice tremble, until it became apparent that his inmost being was shaken. I have seen him so moved that his face shone with "the noble rage of battle," or quivered with almost womanly tenderness. His personal characteristics were most attractive. He had an inexhaustible fund of stingless humor, and was as thorough in enjoyment as he was in labor. He was very patient and self-contained with all men, but very genial with the young. He was firm in his own opinions, but tolerant even to the prejudices of others. He abhorred scandal, and spoke no evil even of his enemies. He disliked the pretensions and hypocrisies of conventional society and, apart from his business, lived a very secluded and domestic life. He was in the strictest sense exact. He gave to all men their own and required his own from them. And he was neither ostentatious nor prodigal in his charities. He never reached the public through the coarse modes and thin disguises of our periodical philanthropists. He encouraged neither idleness nor vice, and he in- vestigated before he gave. But he missed no opportunities, at whatever cost, to make 200 BENCH AND BAR IN CAWFORNIA.' legitimate investments in humanity. He had in him the elements that make a man and prepare an immortal. He was greatin mind and great in heart. And somewhere among the stars, in increased strength and beauty, his soul and spirit live, undisturbed by phys- ical pain and weakness. While he fulfils his mission there, his influence shall survive here, even though his memory fail among men. Judge McKinstry responded as follows : I have had occasion to study the peculiarities of the more distinguished members of the bar, and of Judge Shafter I observed that his logical arrangement was always happy, the- language which clothed his argument generally, if not always, appropriate. Ordi- narily, his words were the simplest and purest English, but he could indulge in quaint and sudden turns of expression which recalled for an instant the latent humor of the man, and were sometimes wonderfully efficient, presenting a moral demonstration in a single picturesque phrase. He was ever prepared to illustrate his theme by the results of a most extensive and varied reading. He was, in short, a learned lawyer of an older school, whose mind had been thoroughly trained and shaped in the principles of the common law, and he resorted to codes and statutes only to ascertain how far the com- mon law had been departed from. Yet, in a. proper way, no one was more progressive than he, none more capable of applying principles — in themselves unchangeable, because based upon immutable justice — to the complicated relations of our day. He was a man of independent views and heart. His political opinions were avowed openly, and urged strenuously at a time when they had been adopted by but a very small minority ; his moderation and magnanimity in the hour of triumph might well have been imitated by those who had become convinced of the correctness of such principles only when their triumph was imminent. My personal intercourse with Judge Shafter was always pleasant. I recall his genial manner in private life, at the bar his courtly bearing to bench and counsel. ' He was a most successful man, in a worldly sense. He was most successful, not only in such sense, but in that he had established a distinguished name long before he had ceased an active participation in the busy scenes of professional life. It was very sad to hear that his great reputation — a splendid column — towered toward the last amidst the majestic ruins of the intellect which had builded it. But his friends may well be- lieve that this best of memorials will continue to stand — monumentum aere perennius — while learning and ability shall be respected in the profession he adopted. Although, as stated, Judge Shafter had his humorous side, not many of his jests are remembered, for this was not one of his distinguishing features. He was once addressing Judge Edward Norton, in the Twelfth District Court, and was pressing with much pertinacity a defence quite technical. Judge Norton, interrupting him, said : ' ' Mr. Shafter, it seems to me that that is a very nice distinction which you are laboring upon." Shafter replied: "Your honor! That science of which you, on the bench, and I at the bar are alike earnest votaries, what is it but the science of distinction ?" Judge Shafter was made, a good many years before his death, an 1,1,. D., by the College of California, which was founded by Professor Hemy Durant, and which was the forerunner of the State University. He was always an active friend and helper of education. He was a very careful business man, but gave liberally in charity. It should be stated that upon the death of Judge Shafter, the New York Evening Post — Bryant's paper — published some original and affecting lines to his memory. BENCH AND BAR IN CALIFORNIA. 201 Judge Shafter's widow removed to Boston, in the enjoyment of a con- siderable fortune, the product of her husband's professional practice, which was all accumulated in San Francisco. The oldest daughter married Mr. Charles Webb Howard, of San Francisco. This is the ' 'F' ' (Emma) to whom the Judge referred in his letter given in full above. The second daughter, Mary, is the wife of Mr. John Orr, of Orr & Atkins, of San Fran- cisco. This lady, in addition to beauty of feature and graces of manner, is a woman of wide information and great strength of character, and inherits in a great measure her father's qualities of mind. Judge Shafter was sadly disappointed for a long time in having born to him no boy to perpetuate his name. Devoted to his daughters, he yearned for a son for many years, until, at last, one arrived. It was a cruel visitation that took from him this boy at the age of seven years. About the year 1856 a gentleman who was an assistant in his office became a father of a girl. The morning after the event, Mr. Shafter (he was plain Mr. then) went up to his employee's desk while he was engaged in writing, and placing his hand upon his shoulder and calling him by his first name, said : " Well, , they tell me there is a new arrival at your house !" " Yes, Mr. Shafter ; that is a lively truth." " And they tell me it is going to wear a sun bonnet," said Shafter. ' ' Yes, Mr. Shafter ; that is true, too. This comes from my being in your office — from my intimacy with you." " I should prefer," retorted Shafter, after a moment's surprise, "that you would attribute it to your wife's intimacy with — mine." Whereupon, Shafter, Park and the assistant aforesaid, all took a fresh ' 'chew ' ' of tobacco from a big box which they kept in common. James McMillan Shafter, brother of the preceding, is probably the only man living who has won distinction in three widely separated common- wealths. In all he has been alike conspicuous in law, politics and legislation. He was born in Vermont, May 27, 1816. Upon graduating from the Wes- leyan University, Middletown, Connecticut, he commenced law practice, hav- ing prepared himself for the profession while a student at the University. He was soon elected a member of the lower branch of the, Vermont legisla- ture and served a term. From 1842 to 1849 he was Secretary of State. In the latter year he fell in with the great current of life rolling westward, but stopped in Wisconsin, where he remained six years. In politics he was a Whig, and, so far as political advancement was concerned, he found that Wisconsin was a less favorable field than Vermont. His district was strongly Democratic, the heavy German element then siding with that party. In 1 85 1, however, he was elected to tho Wisconsin Assembly, and was made 202 BENCH AND BAR IN CALIFORNIA. Speaker. In 1852 he ran for Congress. So marked was the popular recog- nition of his ability and integrity that, although defeated, he received a thousand more votes than General Scott, his party candidate, for President. He was nominated again for the next term, but declined. In 1855 Mr. Shafter was invited to California by his brother, who was do- ing an immense business in partnership with General C. H. S. Williams and Trenor W. Park. He had just been nominated for District Judge, and it was generally agreed that he would be elected, but, acting on his brother's advice, he declined the nomination, and came to California, reaching. San Francisco, December 15, 1855. To illustrate the extraordinary alertness of both mind and body, which has always distinguished him, it maybestated that he landed from the steamship at six o'clock in the morning, visited his brother's office, engaged lodgings, formed a partnership with E. B. Mastick, and at ten o'clock of the same day was at work reforming pleadings in a leading case. Mr. Shafter' s association in business with Mr. Mastick did not last long. His brother's firm offered him a tempting salary to assist them, and he ac- cepted it, entering their office within a few months after his arrival. About 1857, on the withdrawal of General Williams from the firm, a new associ- ation was formed between Oscar ~L,. and James McM. Shafter, T. W. Park and Solomon Heydenfeldt, under the firm name of Shatters, Park & Hey- denfeldt. Not long afterwards Judge Heydenfeldt withdrew, and the firm became Shafter, Park & Shafter. In 1862-63 Mr. Shafter represented San Francisco in the State Senate. He was made President pro tern. , and presided over the High Court of Im- peachment, which removed Judge James H. Hardy from the bench of the Sixteenth judicial district. He was a leading member of the Constitutional Convention of this State in 1878. He was, afterward, among the strongest opponents of the instrument which was framed by that body and adopted by the people. A member of the Judiciary Committee, his views upon the very interesting question of Judge Fawcett's right to a seat in that body, commanded wide attention. Judge Eugene Fawcett, an able lawyer, was elected a delegate to the convention from Santa Barbara county. He was, at the time, the Judge of the District Court of the First Judicial District. The old constitution provided that district judges, while such, were ineligi- ble to hold any other office. The question was, " Was the position of member of a Constitutional Convention an office?" Judge Fawcett's seat was con- tested, and the matter was referred to the Judiciary Committee. It provoked warm discussion in the committee and in the convention. The majority reported in favor of awarding the seat to Judge Fawcett, and the report was adopted. Mr. Shafter wrote a minority report, which was signed by him and two others. In this paper he presented a masterly argument in BENCH AND BAR IN CALIFORNIA. 203 support of his view — that if Judge Fawcett were admitted he would be hold- ing two offices at the same time. Judge Fawcett claimed that this was in no sense an office in the meaning of the constitution, and that even if it was, the people had the right to say who should represent them in a convention to frame an organic law ; that if the people of one generation had a right to dictate to the people of the next they had a right to say how and what their descendants should do, and we would virtually have no power to alter or amend the organic law. Mr. Shafter expressed his unqualified dissent from this doctrine, and pronounced it unfounded and dangerous. In this report he incidentally declared that the opinion of the Supreme Court in the case of the People vs. Provines (34 Cal., 520) was not sound and was not entitled to very favora- ble consideration. (This opinion, by Judge Sanderson, established the right of the Police Judge of San Francisco to appoint policemen.) Mr. Shafter said it controverted the soundness of a long and unbroken stream of California decisions. The first leading case in which Mr. Shafter was engaged was that before alluded to, upon which he went to work on the morning of his arrival here — the case of Birrell vs. Schie, which went to the Supreme Court and is re- ported in the ninth California, page 104. The principle was here established that the debt can be followed through several successive mortgages, notwith- standing the discharge of all those intermediate, and the taking of new obli- gations surrendering and canceling the old. In the same volume of reports is the case of McMillan vs. Richards, in which the nature and law of mortgages as they exist in this State, the necessary incidents of redemption from fore- closure sales, the effect of protest upon payment were clearly fixed. The ex- amination of authorities and the brief upon the prevailing side were made and prepared by Mr. Shafter, jointly with his brother and Judge Heyden- feldt. In Seligman vs. Kalkman (8 Cal., 207), which was conducted by Mr. Shafter through all the courts, it was decided that no title passed in case of a purchase of goods by an insolvent who knew of his own insolvency at the time. The doctrine of this case was subsequently modified by the court. In Green vs. Palmer (15 Cal., 411), Mr. Shafter succeeded in overturning a decision of Judge Norton, of the Twelfth District Court, and procured from the Supreme Court a decision which amounts to a treatise upon the subject of redundancy in pleadings. The opinion in this case was written by Jus- tice Field. He has been prominent in many other cases involving principles of pleading and construction of statutes, in which his views were accepted by the court, and have become settled doctrines. In 1861, while in the State Senate, Mr. Shafter made an effort to have enforced the constitutional prin- ciple that all property should be taxed. Failing in that he instituted the action of the People vs. Shearer, Assessor of Marin county, to have the claims 204 BENCH AND BAR IN CALIFORNIA. to the possession of lands, the title to which was in the government, assessed and taxed like other property. He conducted this case, and procured a decision requiring the taxation of these lands against the claimants, notwith- standing that the title was in the government. The last case of importance tried by Mr. Shafter before a partial with- drawal from practice was the matter of the probate of the will of James Black of Marin county. Black's estate was valued at $800,000. He left a widow and a grown daughter, the wife of Dr. Birdell of San Francisco, the child by a former wife, who was a native Californian. He bequeathed his large prop- erty to his wife, but had some years before presented to his daughter a farm and made her advances — the whole amounting in value to $100,000. The daughter contested the will, alleging her father's unsoundness of mind. Mr. Shafter, with Judge J. B. Southard and Mr. J. M. Seawell appeared on her behalf, while the widow had for counsel Mr. S. M. Wilson, Alexander Camp- bell, now of Los Angeles, and Sidney V. Smith. There were three long and ex- haustive trials of this celebrated contest in Marin county, the jury disagreeing each time. The case was then removed to San Francisco and tried before Judge M. H. Myrick, then our Probate Judge. This last trial lasted three weeks and resulted in the breaking of the will, and the estate, after many generous slices had been cut out of it by counsel, was divided between the widow and daughter. Mr. Shafter has always manifested a lively interest in agricultural pur- suits. He has been President of the State Agricultural Society, and in September, 1878, he delivered a long and thoughtful address before that body. He is an owner and breeder on a large scale, of blooded horses, cattle and other stock. Simple in his tastes, plain in his speech and dress, regular in his habits, he has been a toiler all his life. He believes in work, and has repeatedly offered prizes to young people to encourage them in their strug- gle, and to impress upon their mind a sense of the beauty and dignity of labor. One of his cleverest and most characteristic acts in this line was the plate presented by him to a young lady at the State Fair in 1880 — a prize won by her for baking the best loaf of bread, there being many contestants from all parts of the State. On presenting the prize Mr. Shafter said : I do not think that baking a loaf of bread is the highest duty of a girl, but I do think that to become an accomplished housewife is not only one of the first, but one of the most imperative duties of women ; and it is to direct attention to, and to create in you a belief of this fact, that I offer you this premium. I have called you ladies. What is your title to this appellation ? There are titles of birth, place, honor and worship ; these are of right. There are also titles of courtesy, and in this country lady is one. It is true there are some who strive to confine this title to those esteemed of the highest in social position. But this assumption is denied by most, and the title is generally applied to all respectable women of tolerable manners. But I feel constrained, young ladies, to put you upon a higher plane than most, and to assert BENCH AND BAR IN CALIFORNIA. 205 for you the highest and most time honored claim to this honorable name. Indeed, you alone inherit it from that time when the memory of man runneth not to the contrary. Some hundreds of years before our era the Greeks and Romans made large conquests in Asia, the birthplace of the human race. They brought back to Europe the spoil of nations, captives, theology, and the productions of nature, including animals, fruits and grain. It was in this way that wheat was diffused throughout Europe, and soon fur- nished bread for all. While the warlike men from the north of Europe were making their excursions by land and sea, the mistress of the household cared for the wild brood which remained. She prepared the stores of hard bread, which the men carried away, and welcomed their return with a full supply of the staff of life. In this boisterous ban- quet, from her own baking she caused a manchet of bread to be placed at each seat, or sent the loaves of bread around in baskets to the feasters. To mark her high office she was denominated ladje — the breaker, dispenser, and, with slight assumption, the maker of bread. I have caused the legend "Bread Maker" to be engraved upon this piece of plate, and I trust the lady, Miss Clara A. Murphy, seventeen years of age, a resident of Brighton, county of Sacramento, into whose hands I now place it, will always retain and exhibit it as evidence of actual merit and honorable distinction. Some time after the death of Judge Oscar L,. Shafter, the Hon. Charles K. Field, an eminent lawyer of Vermont, died in that State. In a notice of Mr. Field by a Vermont journal, allusion was made to James McM. Shafter as "the last of that generation of men composed of the Bradleys, the Kelloggs, the Shafters and the Fields, who for more than half a century gave eminence to the bar of Windham county, and whose names will always shine in the galaxy of Vermont's distinguished men." This coming to the eye oi Mr. Shafter, in San Francisco, recalled to him a host of memories of the bar leaders of his native State, and exacted from him a fervent and affecting response: "Though personally as far removed from Vermont as our national barriers will per- mit," he wrote to the journal referred to, "I cannot pass this notice — this echo from home — in silence. As to the dead 'of the generation of men you name, after making all allowance for the glamour which time and distance always lend, the grandeur of their living presence comes back to me with such force that I place them among the best of those whose memory Vermont should cherish, with pride for their ability and reverence for their virtues. When I left Vermont Mr. Field was but arrived at the zenith of his life. I do not doubt that he went forward from that time. It was my good for- tune to be his intimate acquaintance. His nature at the core was gentle and genial. His wit and sarcasm on more than one occasion made me their object of attack ; but always humorous and witty, and always for honest advice or wise reproof." After brief allusions to Mr. Field's brother, Roswell M., and General Kellogg, Mr. Shafter pays tribute to a political foe: " Among these men was one, not only in age, but in soundness of judgment, learn- ing and versatility of talent, who was justly to be called the Nestor of our tribe — the Hon. William C. Bradley. In all my observation I have never met one who was in himself the embodiment of so much humor, wit, pathos, power of statement and true eloquence, as Mr. Bradley. It is one of my few unsatisfactory recollections of Vermont, that the misfortune of deafness, and his political opinions deprived the State and nation of the full benefit of Mr. Bradley's extraordinary powers." 206 BENCH AND BAR IN CALIFORNIA. Next, with emotion deep and strong, tempered by manly sense and marked by philosophic reflection, he speaks of " A dearer oae, Still, and a nearer one Yet, than all others." " Of my brother I cannot permit myself to speak — at least, not as his memory deserves. He was a scholar from his youth and a ripe and good one ; not, perhaps possessed of the highest and keenest perception, he had the higher possession of a solidity of judgment and such extraordinary powers of abstraction, concentration and generalization, as are rarely exhibited in one person. After he had gone through his examination of a question, it was his habit to call me into his room, and go over his process and conclusion with me. Almost invariably, at least to my vision, the 'hay, wood and stubble of false doctrine,' had disappeared as in fire, and nothing but the imperishable monument of truth and justice remained. "If my brother and myself have done any good in our day and generation (I may speak for both), we acknowledge that we are indebted to the parents God gave us, and to the schools and moral and social influences of our early home, which taught us to live honestly, soberly and industriously, and, if we could not ourselves become great, in the language of the Vermont constitution, to honor those only ' most noted for wisdom and virtue.' It has ever been our maxim that it was not necessary for us to hold office nor even to be happy, but it was necessary to be right. " I have a deep abiding hope for the great future of California. I believe and hope its earth will finally cover me. But when that day comes (and you admonish me that I am the last of my generation), I know that my love for Vermont and the heart upon which it is written will fall into dust together." In this connection may be appropriately quoted some words uttered by Mr. Shafter concerning his brother on another solemn occasion. He addressed the Supreme Court of California, in March, 1881, on presenting the mem- orial resolutions of the San Francisco Bar Association relative to the death of Hon. John W. Dwindle. After dwelling upon the character and career of Mr. Dwindle, and after referring to some others of those who had departed forever from prominent places at this bar, Mr. Shafter said : " My brother, an ex-Justice of this court, smitten by disease, the result of loyal, inordinate labor in his profession, died in a foreign land. His prayer for death, if it was the will of God, rather than life with mental aberration, was not answered. The cup of bitterness was commended to his lips. Unhappy paradox ! outliving the death of all that was himself." The following, which appeared anonymously while Mr. Shafter was at- tending the Constitutional Convention of 1878, I have ascertained was from the pen of Rev. J. H. C. Bonte, then an Episcopal divine of Sacramento, now Secretary of the Board of Regents of the State University. It is a portrait taken of this eminent lawyer while he was making an argument in the Faw- cett case before mentioned: Shatter himself is a part of his argument, so that even the stenographer must fail. His effort, like that of Freeman's, was wholly ignored by the other side, and for the same reason — it was unasailable. Shafter was gentle with Edgerton's luckless attack on BENCH AND BAR IN CALIFORNIA. 207 a clause in the minority report. He was reluctant to hurt, and moderated his blow in consciousness of his strength. He demonstrated the legislative character of the con- vention. The convention is, as it were, a Senate ; the electors are the Assembly. The convention originates the constitutional enactments — the electors by ballot, complete or veto the measure. The legislative analogy is complete, and the result the same. The convention is one house, the electors the other. He echoed the judgment of the world "when he said that the great majority of lawyers are less competent than enlightened laymen to build a constitution. A constitution is especially a popular enactment, em- bodying the popular thought; it must, therefore, be expressed in a language understood by the people . The popular acceptance of the meaning of the words must interpret the intent. The object of all our enactments in this direction was to confine judges to their judicial duties. The land had been sufficiently cursed by judge-made law. I am not giving his argument, but a few flashes. The action of Shafter'smind exacts marked attention. He packs his speech with solid shot, and he is rapid because he feels t hat there is no other way of delivering his enormous cargo . He is massive iu person and in thought, and he walks through his adversaries' arguments as an elephant through a cane- brake As I imagined, he drives his points after the manner of the piledriver. The course of his argument is like that of a glacier — it fills every nook, expands and contracts without breaking ; it moves on, crushing and pulverizing everything in its way. An iron will, invulnerable courage, reckless independence, terrible calmness, intimidating reposefulness, preside over his reasoning. But he is also gracious, and comes down to common apprehension. He is versatile and affluent in thought. He utters sententious argument in brief parenthesis. He is a philosopher as well as a jurist. He is a humor- ist, but his humor is ponderous and elephantine — the gambols of the lamb in the person of the elephant. Therefore, his humor crushes. The sportive leaps of the elephant are as dangerous to man as his wrath. He is modest, but also aggressive ; his satire and irony lacerate and enter joints. He is strong in his personal magnetism. Fortunately, he is genial andwinsome,ormen could notlive with him. His simplicity covers him as with a gar- ment of beauty. But the greatest element of his genius is his impressibility; the age he lives in and its past touch him on all sides. The ruling traits of his character are to be found in his practical wisdom— the art of combining and keeping things in their places— a sense of the mutual dependence of parts — the element of man that corresponds to the law of gravita- tion in nature. Shafter is not an orator in the old sense of the term — he is more — he is a seer. He is not only a jurist — he is more — he is a statesman. It may be sandwiched in right here that Mr. Shafter is fond of music, and in 1861 was President of the Handel and Haydn Society, which, em- bracing several hundred members, used to treat the public to "The Creation," ' ' The Messiah, ' ' and other oratorios. He took a deep interest in the suc- cess of that once flourishing association, and met with it regularly. As I was a member too, in that long ago, I am happy to notice, as he no doubt is, the revival of this Society under the admirable presidency ot Hon. Joseph D. Redding. Mr. Shafter married Miss Julia Hubbard at Montpelier, Vermont, Octo- ber 28, 1845. After a happy union of over twenty -five years, she died in this State February 11, 1871. There are living three grown children of this marriage — Payne J., James C, and Julia R. Shafter. The wide and rich 208 BENCH AND BAR IN CALIFORNIA. domain owned by Mr. Shafter in Marin county was acquired by him in 1856. It comprises 25,000 acres. Upon it are 2,000 bead of live stock, including a large number of the most valuable cows to be found in any country. He is now living in San Francisco, and practicing law in connection with C. H. Parker and F. H. Waterman, but visits his estate every week. His little municipality in Marin county is probably worth half a million of dollars. He has some other property. He is said to be an expert on the subject of fine points in stock — but the stock he believes in goes on legs. He owns no mining stock. His opinion of stocks — especially mining stocks — is not flat- tering. Here is his view of the subject, and, with these words from his mouth, I bid him good-by: ■ " I have no words of blame for those who choose to invest their money in the turn of a card, or what is, at best, the same thing — a turn in the stock market. I leave them to state the moral character of the act, but I ask them : Would it not be, on the whole, better to invest such ventures in starting some honest man in business for which he was fitted, or inaugurating some industry, which by giving employment to only a dozen girls shall save them from a shadow that follows like a doom ? This class of fortunes excites hatred. The wretch who holds aloft a. light to mislead the good ship freighted with wealth, and bearing in her bosom untold love, hopes and sympathies, that he may steal her cargo and strip her deck, is not worse than he who wilfully misleads by false signs the weak and despairing in the stock speculations of our day. Poverty, suicide and sedi- tion follow them ; but who ever saw any great industry undertaken by such wealth? Young men, remember that in heaven's chancery, one honest heart, and in political economy, one dollar earned by honest labor, are worth more than all these men and their wealth together . ' ' CHAPTER XVII. James A. Waymire and M. A. Wheaton, of Ban Francisco, and John K. Alexander, of Monterey— Waymire's Early Life In Oregon— On the "Stump" at Nineteen— His Mili- tary Record— Courage and Coolness In Encounter — On the Bench and at the Bar In San Francisco— Mr. Wheaton's Genius for Mechanics— A Leading Name In Patent Practice— The Great Patent Case of N. W. Spaulding vs. The American Saw Com- pany— The Case of Levi Strauss & Co., vs. King & Co., in New York City— Judge Alexander's Popularity— A Gold Miner in Calaveras— In the Schools of Sacramento- District Attorney and Superior Judge — A Compliment from the Supreme Court. James Andrew Waymire, Judge of the Superior Court, San Francisco, in 1882, was born forty years prior (December 9th), in Buchanan county, Mis- souri. His father, Stephen K. Waymire, was a carpenter and a farmer, owning 160 acres of land on the Missouri river, near a small village. In 1843 the village was laid out into the town of St. Joseph, which, by i860, had attained a population of 8,000, and now has become a flourishing city. Stately buildings cover the old Waymire farm, making the land that was almost unsalable in 1842, worth now thousands of dollars per acre. Judge Waymire's paternal ancestors came from Germany, near Saxe-Weimar, about the year 1732, and settled in Pennsylvania. Subsequently a portion of them removed to North Carolina, and afterwards, in obedience to the law of emigration, drifted west- ward by way of Indiana and Ohio to Missouri. His mother, Mahala E. Gilmore, was of Irish origin. His maternal grandfather, James Gilmore, was a Vir- ginian by birth, but became a pioneer of Kentucky and Missouri. On both sides there were representatives of the family in the wars of the Revolution and of 18 1 2, and also in the Indian wars. In 1808 one branch of the Waymire family established a settlement near Dayton, Ohio, where their descendants still live, numbering several hundred. In 1845 Stephen K. Waymire, moved by the restless, spirit of the Western pioneers, started overland to Oregon with his family in a company of which his brothers Frederick and John, with their families, were members. Oregon was then an almost unknown land, and there was not even an established wagon road connecting it with the inhabited portion of the States. After cross- ing the Missouri river, Stephen K. was thrown from his horse and died from injuries caused by the fall. His widow, with her boy, James, returned to her father, who resided in Buchanan county, Missouri. Frederick and John became successful as pioneer fanners and business men in Oregon. The for- mer was an active member of several sessions of the legislature and of the ■2IO BENCH AND BAR IN CALIFORNIA. convention that framed the State constitution in 1857. He died in 1872.. John built the first wharf at Portland, and became a merchant at Dallas, Polk County. In 1852 James Gilmore, with his family, including the widow Waymire and her son James, emigrated overland to Oregon. The boy made himself useful on the plains by helping to drive the loose cattle, riding horseback most of the way. Though under ten years of age, he had learned to write well enough to keep an interesting diary of the overland journey. The immi- grants formed a settlement near Roseburg, in what afterwards became Douglas county, Oregon. Schools and churches were established as necessary accom- paniments of the colony. At these James was a constant atten- . dant, particularly distinguished for his studious habits. His grand- father had an excellent library of standard books, including the histories of Rollins, Gibbon, Hume, '"Marshall's Life of Washington," "Weem's Life of Marion," "Plutarch's Lives, " " Franklin's Works," "Clarke's Commen- taries," Pilgrim's Progress," and volumes of essays, speeches, poetry, etc. These books were the constant delight of the boy student. Although there was plenty of work to do on the farm (fencing, plowing, chopping wood and caring for the live stock), and he was always ready to do his part, the long winter evenings afforded ample opportunity for reading. Lamps were an unknown luxury, and candles were an extravagance sparingly indulged. But pine knots were plenti- ful and to be had without cost. By their cheerful light, James would often read until urged to bed by some older members of the family. He read history with map and notebook at hand. At fourteen years of age he was quite clever as a writer of both prose and verse. At seventeen he had acquired a fair knowledge of mathematics and Latin with the rudiments of Greek, and had learned phonography. After reaching fourteen years of age he was unwilling any longer to be dependent upon his relatives for support, and began making his own way in the world. His first earnings were by chopping cordwood. At fifteen he was a full hand in the harvest field, in making rails and other farm work. The next year, having acquired a hors and saddle, he obtained employment during the summer at $2.50 per day in driving cattle to Washington Territory. In i860, before he was eighteen, he taught school at $50 per month and " boarded round " with the scholars. This being the first presidential election at which the people of Oregon were privileged to vote, and on account of the slavery excitement, great in- terest was felt. Young Waymire, though not old enough to vote, made speeches for Lincoln, having become a zealous Republican by his historical studies and from reading the Douglas- Lincoln speeches, lectures of Channing, the Tribune, the proceedings of Congress, etc. Most of his relatives were pro-slavery in their views. In September and October he assisted in report- ing the proceedings of the Oregon Legislature for the Oregonian and BBNCH AND BAR IN CALIFORNIA. 211 other newspapers. This was the session at which Colonel F. D. Baker was elected United States Senator after an exciting contest. The young reporter made the acquaintance of Baker and became a great admirer of his genius. It was at Colonel Baker's suggestion, that he resolved to study law, and upon the adjournment of the legislature he set about it by taking "Hoffman's L,egal Studies" as a guide, intending to read the intro- ductory works there recommended while preparing for and passing through college. For years it had been his ambition to graduate at Harvard, and as he had no rich relations to help him through, he resolved ot earn the nec- essary funds. The winter of i860 was devoted to study, as usual, and early in the summer of 1861 he resumed schoolteaching. But the mutterings of civil war were soon heard. There was a very bitter feeling prevalent on the Pacific coast towards the "Lincoln Government." Influential politicians favord the establishment of a Pacific Republic in aid of the Southern Confed- racy that had already been organized. It became necessary to create a strong public opinion in favor of the Union. For this purpose a great many mass meetings were held throughout the State, and at several of these Mr. Waymire was an earnest and acceptable speaker, deprecating war but declaring his readiness to bear his part. The firing on Sumter shocked the country, but it was hoped war would yet be avoided. Then came the disaster at Bull Run in July and the war feeling reached fever heat. All the available troops of the government were needed at once. Augur, Sheridan and other veteran officers with their commands were immediately withdrawn from service on the frontiers of Oregon, Washington and Idaho, and sent to the new field of operations. It was necessary to have volunteers to take their place, so as to prevent the organization of a separate government on the Pacific coast and to protect the frontiers from the Indians. A cavalry regiment was organized as soon as possible and within a few months was ready for service. Waymire might have obtained a commission, but knowing his ignorance of military matters he preferred to learn by experience. Adjourning his school, where he was earning a good salary, he invested part of the money intended for college expenses in a horse and equipments, and enlisted as a private soldier on his nineteenth birthday. His company, with two others, were sent on an expedition, during the year 1862, under command of Colonel R. F. Maury, to protect the frontiers and the overland immigration. They went east to Fort Hall, on the Snake river, and returned to winter at Fort Walla Walla. During the winter, Waymire.having procured the necessary books,kept up his studies. In February, 1863, he was promoted a Corporal. In March of the same year he was surprised by an order directing him to report for duty on recruiting service, and on April 23rd he was further surprised by receiving a commission as second lieutenant. Rejoining his command, he accompanied 212 BENCH AND BAR IN CALIFORNIA. an expedition by way of Lapwai, Salmon river and Boise to Fort Hall. At Brunneau river there had been some depredations committed by the Snake Indians upon the immigrants. Lieutenant Waymire was sent with twenty men and two Nez Perce scouts to pursue the savages and punish them. By rapid marches up the river, he surprised a camp of the Indians, located in a deep canyon. Opening fire upon them from adjacent rocks, he drove them into the river, and across it. Plunging into the swift stream four feet deep, his little command waded across, pursued the enemy up the opposite heights, killed a number of them, captured their horses, and, returning, destroyed their camp, which contained a large supply of ammunition. In this affair, the lieutenant became engaged in a personal fight at close quarters with three Indians, two of whom he had wounded, but not enough to disable them. They were firing at him with revolvers, when timely aid arrived, and ended the contest. During the winter of 1863 lieutenant Waymire's company (D, Captain Drake) was quartered at Fort Dalles. There were several other companies at the same garrison. Waymire was adjutant of the command. He became in- terested in the profession of arms, and added to his library a number of stan- dark works on the art of war. He also continued his course of reading- in law. In February, 1864, General Alvord, commanding the department, issued an order directing Lieutenant Waymire, with twenty-five men of his com- • pany and ninety days supplies, to proceed to the^south fork of the John Day's river and encamp at some point best calculated to enable him ' 'to protect the whites against the incursions of the Indians." There had been many raids upon the frontier settlers of that vicinity, extending over a distance of 100 miles ; and this young officer, but a little over twenty-one years of age, was expected to protect that long line of settlements in a mountainous country with twenty -five men! He was left to act upon his own judgment. He pro- ceeded at once to the south fork of the John Day's river, where he established a camp designating it "Camp Lincoln. " With twenty men of his detach- ment he hastened on to Canyon City (a mining town) twenty miles beyond, for the purpose of investigating the situation of affairs. There he learned that a band of savages had recently killed some miners in the vicinity and driven off a number of horses southward over the Bine Mountains. The winter quarters of the Indians were unknown, and the lieutenant saw at once that the only way to protect the settlers was to make an aggressive fight against them in their own country. Accordingly he prevailed upon the miners to raise a volunteer company to assist him in a pursuit of the Indians. A company of 54 men were organized with C. H. Miller (afterwards famous as the poet "Joaquin" Miller) as captain. This force of 74 men followed upon the trail of the savages across the mountains. It was in March, and BENCH AND BAR IN CALIFORNIA. 213 the winter's snow was still deep on the ground. During the first 13 days there was a snowstorm every day. The men slept at night without tents, and on waking in the morning usually found several inches of Isnow on their blankets. The lieutenant fared the same as the men. The supplies were carried upon pack animals. The horses fed upon such dry grass or brush as they could get from under the snow. The command moved southward to Stein's Mountain near Harney Lake. Here the snow ceased and cold rains began to fall. Some of the men became sick with the measles. The march was rendered so severe by the weather and sickness that 22 of the miners returned home discouraged, leaving but 32 of their company in the field. With these and his own detachment of 20 the lieutenant pushed on beyond Stein's Mountain, and on April 6th suddenly came upon a village of the enemy situated near a mountain gorge. This was late in the afternoon. An attack was immediately made and the entire population fled to the moun- tains, leaving everything behind except their horses and their arms. At three o'clock next morning the lieutenant with his command was in hot pur- suit of the savages. After a march of about 20 miles southward, he was con- fronted by a large force of them on foot and mounted, well armed and pre- pared for a fight. They numbered from 300 to 500. Then ensued one of the most stubbornly contested battles in the history of the frontiers. It lasted from eleven A. m. until nightfall. The Indians, by reason of their fresh horses, greatly superior numbers and intimate knowledge of the ground, had so much the advantage that it is wonderful they did not massacre the entire party of soldiers. By a series of skilful maneuvres, Lieutenant Waymire succeeded in inflicting severe punishment upon the enemy with a loss on his part of only five men and a few horses. More than this, however, he ascer- tained the home of the Indians, thus enabling the General commanding to plan successful campaigns for the future. For this service he was compli- mented in general orders, and some years afterwards (1872) received a letter from General Alvord, containing the following paragraph: "I always remember you as the pioneer of Crook's expedition to south- eastern Oregon. When General Steel left New York in 1865, I saw him off and urged him to make a winter campaign in that region. He did so and sent Crook to carry out the policy." [General Crook with an ample force ot men in 1866-7 conquered a lasting peace with these Indians,] Relative to this affair the Adjutant General of Oregon, in his report to the legislature, said: "The report of Lieutenant Waymire, of Company D, First Oregon Cavalry, will be found very interesting, and his encounter with the Snake Indians near Harney Lake, was undoubtedly the hardest fought battle in which our troops participated, and evinces a courage and coolness on the part of the lieutenant and his brave followers worthy of notice. Should any future occasion call 214 BENCH AND BAR IN CALIFORNIA. him again into the battlefield, I have no doubt, judging from the past, he would rank high as a military leader." Lieutenant Waymire returned to Camp Lincoln with his command, and reported the result of the raid to headquarters. An expedition was immedi- ately fitted out, consisting of three companies under Colonel Drake, to operate against the Indians. Waymire's detachment joined this expedition, and he served as adjutant of the command. Being a summer campaign, the Indians were able to keep out of the way, and little permanent good was accomplished, though there were several skirmishes, in one of which Lieutenant Watson and five soldiers were killed. In the autumn of 1864 a regiment of infantry was called for by the general government, to be raised in Oregon. At the request of Governor Gibbs, Lieutenant Waymire was assigned to duty to assist in organizing the regi- ment. After the fall of Atlanta and the successful march to the sea, it became evident that the war was so far ended that there was no longer any danger on the Pacific coast. Thereupon Lieutenant Waymire tendered his resignation and, at the request of the Governor, it was accepted by General McDowell. The young soldier, turning away from arms, became private secretary to the Governor of Oregon and devoted all his spare time to the study of the law. For two years following he had several hours a day for study, with the ad- vantage of attendance at the courts and the advice of leading members of the bar. He also had access to the Mercantile Library — an excellent collection of miscellaneous books — of which he was librarian part of the time. In his law studies he was greatly assisted by the advice of Judge Deady, of the U. S. District Court, and the discussions of a law club of which he was a member He reported the proceedings at a special session of the legislature in 1865 for the Oregonian, the principal newspaper of the State. He also wrote for the press and delivered several lectures. In February, 1867, he was tendered a commission as second lieutenant in the First United States Cavalry. Alaska had just been acquired and the army had been increased. It was a common opinion that in future it would be necessary to maintain a large regular army. Under such a policy promotiou would be rapid. With these expectations Waymire accepted the commission and came to San Francisco to be examined. The board, of which General French was President and Major Hasbrouck a member, gave him a thorough examination, doubting his capacity on account of his youth- ful appearance. He had no difficulty, however, in answering their inquiries. General French subsequently told Governor Woods that the board were greatly surprised at the young man's knowledge of military matters. The new lieutenant was assigned to M Company, stationed at Camp Lyon, Idaho Territory. He joined it at once and was assigned to duty as Quartermaster and commissary of the post. General Crook was then in command of the BENCH AND BAR IN CAIJFOKNIA. 21 5 district of Owyhee. He was soon after assigned to the command of the department, and General Elliott, then lieutenant colonel of the First Cav- alry, succeeded to the command of the district. The Indians were very- troublesome, and the troops were actively engaged against them, but Lieu- tenant Waymire's duties kept him at the post. Under his management the expenses of the post were greatly reduced. In May, 1869, the company was ordered to Arizona and about the same time Waymire was promoted to first lieutenant. But Congress had begun to reduce the army, and seeing little prospect of attaining any considerable rank during an ordinary life time, and knowing that every year he remained in the army would make it more difficult to five outside of it, he resolved to take final leave of it and to enter upon the practice of the law. Accordingly, he tendered his resignation, and it was accepted in September, 1869. All together he had been in the military service about five years and a half. Shortly after this he resumed his law studies at Salem, Oregon, and at the request of James Anthony, one of the proprietors of the old Sacramento Union, he spent the winter of 1869-70, reporting the proceedings of the Senate of California for that paper. In September, 1870, he was admitted to the bar by the Supreme Court of Oregon after the usual examination in open Court. In the same class with him were John'B- Waldo, afterwards a Judge of the Supreme Court and Raleigh Stott, since Judge of the Circuit Court. He commenced practice at once in Salem. During the summer of 187 1 there was a call for a meeting of citizens to consider the propriety of levying a tax sufficient to maintain free schools for six months in the year. The principal tax-payers were opposed to the proposition, and a great deal of interest was felt in the matter. Mr. Way- mire was among the advocates of the tax, and, after a struggle, the propo- sition prevailed. Subsequently he was invited to address a teachers' association, and he delivered a lecture in which he reviewed with great thoroughness and ability the question of the right of the government to provide for and regulate the education of the young. The paper, being printed and extensively circulated, attracted attention, and by the force of its arguments was of great service in forming a public opinion that soon caused the enactment of laws establishing a greatly improved system of education. Again yielding to the call of the Union he reported the Senate proceed- ings at Sacramento during the session of 187 1-2. This was the session at which the Codes were adopted, and the change afforded a good time for be- ginning law practice in this State. At these sessions he had formed the acquaintance of nearly all the public men of the State, and had made many warm friends, among whom were Senators Perkins, Irwin, (since Governor) Curtis, Farley (since United States Senator), and M. P. O'Connor. At the 2l6 BENCH AND BAR IN CALIFORNIA. close of each session a vote of thanks for faithful reports was passed, and at the close of the session of 187 1 --2, a resolution was adopted allowing the re- porter $420 ($3.50 per diem) as compensation for his work. This he declined to accept, on the ground that being in the service of private individuals he had no right to receive pay from the State. In May, 1872, the judges of the Cal- ifornia Supreme Court appointed him phonographic reporter of that tribunal. In this position he served for three years. During that time he heard and took notes of all the arguments made before the court. He analyzed every opinion and prepared reports of all the cases decided. These reports were first printed in the Union, and most of them — with additions or other im- provements in some instances — were subsequently embodied in the volumes of Reports from Nos. 41 to 49. In 1873 Mr. Way mire delivered the oration upon Memorial Day, at Sacramento. Taking for his subject, "Sentiment in Politics," he demon- strated in a most pleasing address the utility and the necessity of "giving a right direction to the sentiments of a people and opening proper springs of feeling in the heart." This address, was published in the Union June 1st. Following is an extract: "It is a happy feature of our form of government that it affords an ample field for the exercise of all the faculties of man. Sentiment is not one of the materials out of which legal judgments are constructed ; it cannot enter the temple of justice, for there the blind deity stands with the poised scales which nothing but reason can turn . But in the legislative halls, where the lawmakers consider the expediency as well as the justice of a measure ; in the pulpit, where the sublime truths of Christianity are inculcated with- out restriction ; in the free press, upon which the people depend so largely for in- formation and counsel, and especially in the popular forum, where that great controlling power we call public opinion is concentrated and directed to some special purpose, senti- ment, feeling, all the hidden springs by which men are moved to action, are called into play. We can all feel the fires of patriotism enkindled within us when we hear the inspiring strains of some grand national air, listen to the eloquence of " thoughts that breathe and words that burn," or recount the glorious achievements of a favorite hero ; but not all of us can go with Aristotle, Plato, Locke, and Bacon into the mysteries of metaphysics, or explore with Newton, Humboldt, Herschel and Agassiz the wonders of nature 1 ; or follow and appreciate the profound reasoning of a Mansfield or a Marshall. Who in all the civilized world is not familiar with the names of Alexander, Caesar, Cromwell, Washington and Napoleon ; of Demosthenes, Cicero, Pitt and Webster ; or of Homer, Virgil, Shakespeare and Schiller? How few comparatively, know anything of the patient men who have devoted their lives to the development and perfection of the arts and sciences to which every one of us is indebted for the comforts of daily life ; or of their colaborers who have dedicated themselves to the cold logic of the law — that intri- cate fabric which permeates and sustains all society, and which everybody is presumed to know, but which, in fact, nobody does know. A learned Judge, who has been a score of years a student of legal lore, gives days, and weeks, and even months to the investi- gation of some knotty question of law affecting vital interests of the public ; and at length his opinion, clear, compact, fit to stand as a precedent for all time is announced; but it att. acts the attention of a small audience only, even in the community it most BENCH AND BAR IN CALIFORNIA. 217 concerns. A popular orator, in a political campaign or upon the floor of Congress or of Parliament, makes a ringing speech, mixing sentiment with his logic, and instantly his name is upon everybody's lips, and his words, borne upon the numberless wings of the press, become the rallying cry of hosts. He who wins universal fame deals not with the reason of men only, but with some common impulse as well — some feeling or aspi- ration of the human soul." In the same address he urged conciliation toward those who were on the other side in the civil war, saying : "They are now no longer a foe, but fellow citizens, friends, brothers ; and as once we stood up against each other, they clad in gray and we in blue, so now we are ready in response to the call of a common country — whether in the interest of the South or of the North— to stand together, shoulder to shoulder, under the broad folds of that dear old flag which was the flag of their fathers as well as ours — the price of commingled .blood — and which we trust is to be the flag of our children and of their children to the remotest generations." Mr. Waymire removed to San Francisco in July, 1874, and has been engaged in the practice of the law since May, 1875, when he resigned the office of reporter. His practice has been of a general character, embracing a wide range of important law points. In the preparation of his cases he is painstaking and industrious. Whenever the importance of the questions in- volved has justified the labor, he has made it a practice to write careful briefs and have them printed. He has been engaged in many important cases. In 1877 General Meyers, Consul General to Shanghai, China, employed him to prepare charges against Hon. George F. Seward, Minister to China. General Meyers had been suspended from office by Seward because he had reported certain irregularities in office on the part of the Minister. The evidence ac- cumulated by Meyers was documentary in most part, and quite voluminous. This was analyzed by the attorney, and charges were prepared and printed. With this preparation and a brief bv Mr. Waymire, General Meyers went on to Washington, where he employed Matt. Carpenter and Robert Ingersoll, to prosecute the case before Congress. After a long contest, Mr. Seward was recalled and the impeachment proceedings were abandoned. To mention some of the cases, in which Judge Waymire has been engaged, that of Barton vs. Kelloch, involved the construction of the con- stitution as to the time of holding the elections ; in the People vs. Houghton the Supreme Court declared a Swamp I^and act to be unconstitutional ; Mohrenhaut vs. Bell involved title to 26,000 acres of land in Sonoma county ; in the South Mountain Consolidated Mining Company he repre- sented the creditors in an application for an assessment of $300,000 on the stockholders ; in the People vs Parks, the Drainage act was declared uncon- stitutional and nearly a million of dollars was saved to the State ; In the San Francisco Gaslight Company vs. Dunn, the city's contract with the gas company was declared void; the Pioneer Woolen Factory vs. Dunn, involved the validity of the Bayly ordinance. 2 18 BENCH AND BAR IN CALIFORNIA. The case of the People vs. Parks (58 Cal., 526) is one of the most im- portant in the Reports. There had been'a law passed by the legislature levy- ing a tax of five cents on the $100, for the purpose of building dams to stop the flow of debris from the mines worked by hydraulics. At a subsequent session the legislature, under the lead of Senators W. H. Sears, W. W. Cam- ron and others, sought in vain to repeal this law, and there was great public excitement over the matter. Several ineffectual attempts were made to get the question of the constitutionality of the law before the Supreme Court. See Camron vs. Weil (57 Cal., 547) and Camron vs. Kenfield (57 Cal. 550). Those cases failed on questions of practice. Finally, the question was squarely presented in People vs. Parks, and the court decided the act was unconstitutional. The only point upon which a majority of the judges agreed was that the act in attempting to confer upon executive officers the power to form drainage districts involved a delegation of legislative functions and was, therefore, void. This point was raised by Mr. Waymire. The original argument on this point in the report of the case in the volume re- ferred to, is well worth examination. Judge Waymire went upon the bench of the Superior Court, by the ap- pointment of Governor Perkins, October 17, 1881, to fill a vacancy. His appointment was greeted with the general approval of the bar. His industry on the bench was generally remarked. The patience with which he would weigh masses of evidence, and the subtlety which he would bring to the examination of nice points of law, were very pleasing, especially to lawyers of large practice. In his fourteen months on the bench he ren- dered eleven hundred opinions, a large proportion being on demurrer, but all on questions which counsel had made the subject of argument. Of thirty appeals from his judgments only three appeals were sustained. At the end of Judge Waymire' s short term as Superior Judge, he was nominated by his party for re-election. The Republicans were divided in San Francisco at that time, on local issues, but he was presented for re-election by both factions and unanimously. He was defeated by a small majority, owing to a change in the German vote. In consequence of an agitation of the Sun- day law question, that vote seemed to be cast almost solidly for the Demo- cratic nominees, State and local, political and judicial, in 1882. It was in that campaign that Charles Kohler, the large producer of native wines, and President of the ' 'league of Freedom, ' ' went over to the Democracy from the Republicans, with a large following. Mr. Kqhler, however, desired to see Judge Waymire re-elected. The lawyers supported the Judge with gen- eral concurrence; Hall McAllister and other bar leaders publishing a card in his behalf. Although defeated, he received the highest vote of all the Re- publican candidates in that contest, and ran over 3,000 votes ahead of his party candidate for Governor. BENCH AND BAR IN CALIFORNIA. 219 Resuming his profession, he expected that the work of building up a business anew would be the engagement of years. But hardly a year had passed before his practice was so extensive that in comparison with it, his business before going on the bench was small. The litigation which has since made his name most familiar to the public was that of the so-called railroad tax cases. He had been the attorney of Hon. John P. Dunn when the latter was Auditor of the City and County of San Francisco, in matters affecting the public, and was again called into coun- sel by Mr. Dunn, when he had passed from the Auditor's office in San Fran- cisco to that of State Controller. One hundred cases had been instituted in thirty-three counties of the State, by the District Attorney, against the Cen- tral Pacific and Southern Pacific Railroad Companies. These suits were brought to recover sums of money claimed to be due as delinquent taxes, and the aggregate amount was over one million dollars. They were all, on motion of the defendants, transferred to the United States Circuit Court at San Francisco, for the reason that they involved questions arising under the federal constitution. Controller Dunn employed Judge Waymire with others to assist the At- torney General in pressing these suits to judgment. The Railroad Compan- ies had paid in a little over $200,000, after the suits were begun. The State lost these suits, both in the Circuit Court and in the United States Supreme Court. However, the attorneys sued out writs of error to the Supreme Court of the United States, and before the decision of that tribunal, succeeded in col- lecting $800,000 from the defendants. In February, 1883, Judge Waymire was elected by the Encampment of the Grand Army of the Republic a member of the Veterans' Home Associa- tion of California for a term of five years. This institution has established and maintains a home for disabled ex-soldiers at Yountville. In March of the same year he was chosen a director of the association named, and served as chairman of the executive committee until March, 1885, when he was elected president of the association. He has been twice re-elected as presi- dent. It was his suggestion that the Federal Government was memorialized to establish a Branch of the National Soldiers' Home on the Pacific Coast. He was appointed to urge the enactment of the necessary law to that end. After several years of correspondence with members of the Board of Managers, and with Senators and Representatives in Congress, he had the satisfaction of seeing a law passed which appropriated $150,000 to build the Branch Home. In November, 1887, a site was selected near Santa Monica, where buildings will soon be erected, with accommodations for 2,000 old soldiers. He was also a delegate to the National Encampment of the Grand Army, held at Portland, Maine, in June, 1885. In January, 1887, as President of the Veter- ans' Home Association of California, he issued in pamphlet a report of the 220 BENCH AND BAR IN CALIFORNIA. transaction of this association. It was addressed to the Governor of the State, because it was from the State that the institution derived most of its revenue; and it covered the transactions of the association from the beginning, as no re- port thereof had before been issued or prepared. In the recently tried case of Shultz vs. Mcl^ean, before the Superior Court of San Luis Obispo County, Judge Waymire and Mr. T. C. Van Ness were associated for plaintiff. It was one of those cases in equity, so hard to win, in which the plaintiff seeks to have a deed given by him set aside, as having been obtained by fraud. The plaintiff prevailed in this suit, however, recovering title to 22,000 acres of land. John McBrown, the well known farmer of Marin and Contra Costa Counties, now deceased, was one of the best clients of Judge Waymire, who now has in hand the settlement of the large estate left by that gentleman. In addition to his professional successes, Judge Waymire has made some fortunate ventures in San Francisco real estate. His home, however is now in the town of Alameda, where he has a fine dwelling in the midst of four acres of land attractively improved. Upon this he ; has expended $30,000. He has a wife, two sons and two daughters, having married at I,afayette, Oregon, on June 22, 1865, Miss Virginia Ann Chrisman, a Virginia lady, who, like her husband, is of German ancestry. Our annals have now and then disclosed the pleasant example of a lawyer on the bench, so intrenched in the respect and confidence of the bar and peo- ple of his district, as to seem to hold his office by a tenure dependent solely upon his own will. Such an instance was presented in the late Robert C. Clark, of Sacramento ; -another, in the late Samuel B. McKee, of Alameda ; and a living illustration is seen in the Superior Judge of Monterey. John K. Alexander was born October 8, 1839, in Rankin county, Missis- sippi, of American parents. His paternal ancestors were Scotch, and on his mother's side they were English and German. Brandon, a little town, was the county seat of Rankin county, and John K. , was born there during the flush times of the "Brandon Bank", when money was plenty, although it was of the "rag" variety. The elder Alex- ander was then, as he continued to be for a long period, there and in Cali- fornia, a contractor and builder, and did a large business until the financial crisis, that followed the flush times aforesaid, threw him into a sea of troubles, and, not being able, by opposing, to end them, he removed with his family to Jackson, Mississippi. There he followed his trade for some eight years. In November, 1849, leaving his family, a wife, two sons and a daughter, at Jackson, he started for California, arriving in the following January, and set- tled at Sacramento. From the time he, left his family until July, 1854, fl i s BENCH AND BAR IN CALIFORNIA. 221 son John K. attended both public and private schools at Jackson. In that year the family circle was complete again, at Sacramento. There John K., very soon after his arrival, entered a public grammar school, which he attended until the fall of 1857. Then, his father being interested in a gold mine in Calaveras county, he was offered an opportunity to make his first money, and embraced it. He worked in the mine (the Woodhouse Quartz Company's claim) for about one year, laboring hard, to his great advantage physically. Returning to Sacramento, he brushed up his boyish scholarship, applied for admission to the High School, and, on examination, was admitted. He re- mained in that school for two years, serving one term as vice-principal. Then graduating, he commenced the study of law in the office of Geogre R. Moore, who was a good lawyer, with a large business. He studied later under Har- rison & Estee. He took up the study of the law gravely, seriously, with a good conception of its perplexities and accumulations, conscious that it chal- lenged the thoughtful investigation of the best quality of mind, and express- ing, very quietly but with the conviction that he could accomplish it, his in- tention to succeed. He was admitted to practice in the Supreme Court, October 7, 1862, upon motion of Morris M. Estee and after examination in open court. In 1863 he formed a partnership with his old instructor, Mr. Moore, which lasted until the latter's death. Mr. Moore, who had watched with interest his studious and painstaking qualities, had perfect confidence in his competence, and threw the burden of the business upon him. This was of immense service to him. He came to owe much to Mr. Moore, whose advice and prompting greatly aided and stimulated his labors while he studied, and which have continually advantaged him at the bar and on the bench. After Mr. Moore's death, Mr. Alexander continued the practice alone, doing a good and paying business until the fall of 1868 when he formed a partnership with Hon. John W. Armstrong. This firm was dissolved upon Mr. Alexander's taking the office of District Attorney in 1870. In the campaign of 1867, which resulted in the election of Henry H. Haight as Governor, Mr. Alexander was a conspicuous political figure at the capital, being chairman of the largest Democratic organization in that section. Two years later his party nominated him for District Attorney, and he was elected in a Republican county over his Republican opponent, M. C. Tilden, by 684 majority. He served one term, two years, with more than average success, and was then nominated by |his party for County Judge. But he had to run against that popular veteran, Hon. Robert C. Clark, who held a continuous estate in that office until it was abolished by the constitution ot 1879. He had also to stand up against the popular current on which Newton Booth was just then careering towards the chair of State. 222 BENCH AND BAR IN CALIFORNIA. Being defeated in that contest, before re-entering professional harness, he went with his family to the Fastern and Southern States, to revisit the friends and scenes of his boyhood, and generally to see the' country and its wonders. Returning, after three months' absence, he formed a partner- ship with A. C. Freeman, who has since become widely known as a law writer and compiler. He materially assisted Mr. Freeman in the preparation of the work on "The I^aw of Judgments.'" In August, 1874, he dissolved with Mr. Freeman and on account of ill health removed to Salinas City, the Monterey county seat, where he opened a law office. He had not been there long when the Board of Supervisors em- ployed him in several important matters of public business. Among these was the case against Robert McKee, ex-county Treasurer, on his bond, and one against M. A. Castro, ex-Tax Collector, also on his bond; and in a crim- inal action against the latter, and W. H. Rumsey his deputy, which grew out of the burning of the courthouse. In these bond cases he recovered judgment' and secured the money for the county. He was very successful in his new home, and, although often pressed to re-enter politics, he refused, and attended strictly to his law business. But, in 1879, being nominated by his party for Superior Judge, he could not resist the allurements of the highest judicial rank in the State under that of Supreme Judge. His pride was his profession, which was worth more to him, in a money sense, than the salary of Superior Judge. But he accepted the nomination tendered him, and was elected by 359 majority. He was re-elected in 1884, though the State and the County went for James G. Blaine for President. His candidacy in 1879 was induced by a request in writing, signed by 100 of the leading citizens of Monterey County differing in politics, but all moved by a fear that the candidate of the Workingmen's Party would be Superior Judge. He was afterwards nominated by the Democratic Conven- tion, and the nomination was endorsed by the Republicans. He was elected over, two opponents, for besides the candidate of the Workingmen (N. G. Wyatt) the New Constitution Party, another ephemeral organization, presented a nominee in the person of an old bar leader of that region, Hon. D. S. Gregory, since Superior Judge of San L,uis Obispo County. Judge Alex- ander's reply to the request of citizens in 1879 was as follows: Saunas City, July 9, 1879. Messrs. James W. Finch and others. Gentlemen : I have the honor to acknowledge the receipt of your very complimentary letter, requesting me to become a candidate for superior judge of Monterey county. I am deeply sensible of the compliment you pay me, and my sense of obligation is inten- sified by the high character and standing of those whose names are appended to the request. I am also gratified to find that the list embraces the names of BENCH AND BAR IN CALIFORNIA. 223 Citizens of all political parties. A judicial office is in its very nature non- partisan, and for that reason it has been the study of statesmen to divorce the seleetion of the judiciary from all political partisanship and elevate the ad- ministration of justice high above the plane of party strife. To assume the judicial ermine and wear it worthily requires the aban- donment of all party bias and personal prejudice, a possession of educational qualifications, "clean hands and a pure heart." While I do not claim for myself the full measure of fitness for the position of superior judge, and have grave doubts as to my qualifications for that responsible position, permit me to say that from the time I entered upon the study of the law, now more than fifteen years, it has been my ambition to worthily fill an honorable judicial position — an ambition which in the ethics of the profession has always been deemed laudable, because its possession affords in some manner a guaranty of a profound study of, and respect for, the science of government and admin- istration of justice. In view of these considerations, and with profound gratitude for the con- fidence expressed and the honor conferred by your request, I respectfully con- sent, and announce myself as a candidate for the office of superior judge; and if the partiality of my fellow-citizens should call me to fill that position, I shall bring to the discharge of its important duties at least an earnest desire and determination to perform them honorably, faithfully and impartially; and in- asmuch as a new constitution has been ratified and will soon be the supreme law of the land, by the act of the sovereignty, it may not be improper for me to add that it ought not and should not be subverted by legislation, or nulli- fied by hostile judicial interpretation, and if I am elected to the superior judgeship I shall take an oath to maintain and support the new organic law, and I shall do it ; and when called upon I shall so construe and interpret it as to carry out the letter and spirit of its provisions. Again expressing to you my sincere thanks, I subscribe myself, Your obedient servant, John K. Alexander. Judge Alexander, while cautious, careful and methodical, is yet a man of dispatch. No case stands on his calendar more than three months. Prac- titioners in his court know nothing about "the law's delay" or the "insolence of office. ' ' He maintains the utmost order and decorum, and has had no trouble or unpleasantness with any attorney or -litigant. Not one of his judg- ments has been reversed, although very many appeals have been taken from them. The first murder case tried before him, that of the People against lams, is reported in 57 Cal., page 115. Therein the Supreme Court unani- mously and highly complimented him. The official reporter, Mr. George H. Smith, sets forth Judge Alexander's charge to the jury in full. This is a 224 BENCH AND BAR IN CALIFORNIA. fine legal paper, and adds to the value of the Reports. The Supreme Court K in their opinion affirming the judgment of Judge Alexander, declare : "We are obliged to say, in justice to the learned Judge who presided at the trial, that the charge to the jury is a very clear and able statement of the law of homicide. It is a long charge, completely covering all the points in the case, and is, in our opinion, entirely correct." Although arriving in this State at an early day, and for a time working in the mines, Judge Alexander never contracted any vice, but has always lived a, pure life. His temperament is calm and judicial. While free from asceticism he does not frown upon reasonable conviviality and social cheer. The Judge has long been a Mason. He is a Past Master of Salinas I,odge No. 204, and a member of Salinas Chapter, of Ro5 r al Arch Masons. He married at Petaluma, August 2, 1865, Miss Sallie B. Carothers, and has two sons, Elmer P. , and Roy Iy. He is a member of the San Francisco Bar Asso- ciation, whose rooms in the Supreme Court building he finds a most congenial place of retreat and conference in his frequent visits to the metropolis. ' He has a younger brother, Daniel E., practicing law at Sacramento, and one still younger, Frank A., a farmer. He lost at Sacramento, many years ago, soon after graduation and marriage, an only sister, one of the most inter- esting and amiable young women I have ever had the good fortune to meet, I may be permitted to recall her memory, and drop a tear to the long ago when I attended the school with her and her brothers. The fiftieth anniversary of the marriage of Mr. and Mrs. B. F. Alex- ander, the venerable parents of Hon. John K. Alexander, was observed on the fifteenth of June, 1887. Mr. and Mrs. Alexander were married five days before Queen Victoria succeeded to the throne, and when Martin Van Buren was President of the United States, and came to California from Mississippi in January, 1850. Until recently they lived in Sacramento, where their son, the distinguished judge, was once District Attorney as stated. Their home is now on their farm, Laurel ranch, near Menlo Park, where the day and even- ing on the interesting occasion referred to, were given to the entertainment of their friends, very many of whom are among the leading lawyers and business men of San Francisco. Mr. B. F. Alexander is a retired contractor and builder. The Del Monte Hotel at Monterey, after which the present structure of that name is modeled, was totally destroyed by fire on the first of April, 1887. This was a direct loss to the owner, The Pacific Improvement Company, of $450,000, besides subjecting the company to many suits by guests to recover damages for the destruction of wardrobes and jewelry. The company soon came to believe that Edward T. M. Simmons had started the flames, in re- venge for having been discharged from clerical employment in the hotel. It prosecuted him for arson. After a .trial, the jury promptly acquitted him, BENCH AND BAH IN CALIFORNIA. 225 and he instituted suit against the company to recover $100,000, for alleged damages to his character- His strong point was the promptness with which the jury had declared him not guilty. D. M. Dehnas, who had with his usual •cleverness defended him in the arson case, was his attorney in this suit for damages. Hall McAllister conducted the case for the 'company, which answered that it had "probable cause," etc. A verdict was rendered for the Company after atrial of fifteen days. On this interesting question of probable cause, it is well to preserve in this connection Judge Alexander's charge to the jury. The case was not appealed, and I take the more pleasure in lay- ing before the profession this statement of law as it came from one who (in the case of lams before mentioned) won such emphatic applause from the Supreme Court. Judge Alexander charged the jury in this case as follows : In the present case the proposition of probable cause is involved and this is a matter •of law, and is entirely with the Court, and I instruct you that if you believe that certain facts are established by the testimony, that then probable cause is shown. The Court tells you what is probable cause, as applied to various assumed facts, and you apply this rule to the facts which you find from the testimony produced. The single duty which the law casts upon you is to ascertain the facts, and the duty imposed upon the Court is to give you the law and also to define one of the special defences set up in this case. It is charged that the defendant in this case wilfully, maliciously, and without probable cause, caused the arrest, imprisonment and prosecution of plaintiff. It is admitted that the defendant caused or procured the arrest, imprisonment and prosecution of the plaintiff, and your next inquiry will be, was there probable cause shown for the action of the defendant? The question is, was the charge made maliciously and without probable cause ? In trials of this nature it is of infinite consequence to mark with the utmost precision the line to which the law will justify the defendant in going, and will punish him if he goes beyond it. On the one hand, public justice and public security require that offenders against the law should be brought to trial and to punish- ment, if their guilt be established. The interests of public justice require that parties who, in good faith, and upon grounds believed at the time to be sufficient, attempt to bring supposed offenders to just accountability, should not be mulcted in damages merely because the accused party had ultimately succeeded in obtaining an acquittal of the charge. Courts and juries and the law officers whose duty it is to conduct the prose- cution of public offenses, must, in most instances, if not in all, proceed upon the infor- mation of individuals, and, if these actions are too much encouraged, if the informer acts upon his own responsibility, and is bound to make good his charge at all events, under the penalty of responding in damages to the accused, few will be found bold enough, at so great a risk, to endeavor to promote the public good. The informer can seldom have a full view of the whole ground and must expect to be frequently disap- pointed by evidence which the accused only can furnish. Even if he possessed the whole evidence, he may err in judgment, and in many instances the jury may acquit, when to his mind the proof of guilt may be complete. On the other hand, the rights of individuals are not to be lightly sported with, and he who invades them must take care that he acts from pure motives and with rea- sonable prudence and caution. For the integrity of his own conduct, he is responsible, and his sincerity must be judged of by others from the circumstances under which he acted. If without probable cause, he has inculpated another and subjected him to 226 BENCH AND BAR IN CALIFORNIA. injury in his person, character or estate, it is fair to suspect the purity of his motives^ and the jury are warranted in presuming malice. But, though malice may be proven, yet if the accusation appear to have been founded upon probable grounds of suspicion, sufficiently strong in themselves to warrant a reasonably prudent or cautious man in the belief that the person accused is guilty of the crime charged, he is excused by the law, Both must be established against him, that is, malice and the want of probable cause; of the former the jury are exclusively to judge and determine; the latter is a mixed question of law and fact. What circumstances are sufficient to prove probable cause, must be judged of and determined by the court; but to the jury it must be referred, whether the circumstances which amount to probable cause are proved by credible testU mony or not. What then, is the meaning of the term "probable cause?" We answer, a reasona- ble ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a reasonable, cautious and prudent man in the belief that the accused is guilty of the offence with which he is charged. I do not think that I can add anything to the exposition I have given, not only of the extent to which a citizen should be protected in making' such charges as may lead to the enforcement of our penal laws, in cases where their infringement comes within his. notice, and the extent to which they should be upheld by Courts and juries, when they act honestly and from pure motives, but also of the care and caution which they should exercise if they would find themselves justified in making such charges, should they prove unfounded. The rule, as I have already stated, is that the circumstances must be such as in themselves would induce a reasonable, cautious and prudent person to believe that the crime of whi»h the party is accused has been in fact committed by him, and Such as he might have known by reasonable inquiry. If the facts and circumstances, known to him were such as to induce a reasonable, prudent and cautious man to believe and he did from these circumstances actually believe, that the crime charged had been in fact committed by the party, that is probable cause, and the party preferring the charge is excused by the law, even though the party accused may have been acquitted and proven to have been innocent. If it should turn out that the defendant in this case was entirely mistaken, that Mr. Simmons was innocent, that the witnesses by whom the defendant expected to prove the charge had deceived it, or that it mistook the bearing and weight of the circumstances upon which it relied ; yet if defendant really believed such testimony, and it was of such character, that, laid before an ordinarily reasonable, cautious and prudent man, he would believe that the crime had been committed, the defendant could lay the charge before a magistrate, and should it turn out unfounded, be protected by the integrity of its purpose and the honesty of its motives. I will sav here that no evidence is ever introduced before a jury as to what is the measure of a prudent, reasonable and cautious man. The ordinary measure of a prudent, reasonable and cautious man, you are yourselves to determine. As jurors, you are presumed to be reasonable, prudent and cautious men. You determine that for yourselves, as you un. derstand the term, and then apply it as you interpret it. If the defendant, for. instance, had reason to believe and did believe, that the crime of arson had been committed by the plaintiff, from facts and circumstances that would have justified a reasonable, prudent and cautious man standing in its position in so believing ; if it made and caused to be made such inquiry as a cautious and prudent man would make, and ascertained such facts and circumstances as would have induced a reasonable man to believe said crime had been committed by the plaintiff , that would have been probable cause for it, and it might act upon it with safety. If the acts of the BENCH AND BAR IN CALIFORNIA. 227 defendant in this respect can be justified on that ground, that is the end of this case and your verdict should be for the defendant. If on the other hand, you find from the evidence that the defendant did not make such inquiry into the facts as a reasonable, prudent and cautious man would have made, and that, if it had made such inquiry, it would have discovered evidence which would have justified a reasonable man in believing that plaintiff was not guilty of the charge made, then I instruct you that the failure of defendant to make such inquiry, if it did so fail, shuts it off from resorting to that defense. The defendant cannot justify itself upon the ground of probable cause, unless it made such inquiry into the facts and circum- stances as a reasonably prudent man would have made under the circumstances. There is another proposition in the case, standing upon an independent footing, and which can be considered independently of any of the propositions discussed. That is that the party who made the complaint and caused the arrest, acted upon the advice of counsel. This, when satisfactorily proven, constitutes a special and complete defence, in actions of this character, and the advice of a lawyer of standing, honestly taken, upon a full statement of the case, may constitute a justification which would not otherwise exist. If a party having fully and fairly investigated a case, and possessed himself of its material facts, for the purpose of honestly taking a legal opinion upon it, and then fairly and honestly stating all of the facts and circumstances of which he is possessed, to a qualified and competent lawyer, for the purpose of ascertaining whether a crime had been committed, and whether a prosecution should be instituted, and the lawyer advises him upon these facts that they do establish a crime, and he believes and acts upon that advice, I instruct you that the advice of counsel thus given is a defence, and the defen- dant may justify himself upon it. It is sufficient for him to show that he stated the facts of the case which he had ascertained, as I have already suggested, by a fair and honest statement to the lawyer, as well the circumstances which tend to exonerate, as those which tend to convict, and that upon the whole case he was advised by the lawyer, that a prosecution should be instituted, and that upon that he acted, such advice of coun- sel, thus acted upon, constitutes a defence. If you believe that the defendant' made and caused to be made the inquiry in question as to the facts connected with the alleged crime of the plaintiff — that it made all the inquiry which a prudent and reasonable person would make for the purpose of possessing himself of all the facts of the case, and repre- sented them both pro and con in good faith to a competent attorney, for the purpose of taking a legal opinion, and by that attorney was honestly advised that a prosecution should be instituted and could be maintained, I instruct you that such a statement and action upon such advice, is a defense to this action, and that your verdict must be for the ' defendant. If you believe upon the other hand, that the defendant withheld or concealed testimony, or that the defendant, in investigating the facts of the case, did not make such research as a cautious and prudent man would make, but only possessed itself of such research and reports as would not of themselves be sufficient to induce this belief in a reasonable, cautious and prudent man, and placed such partial facts before the attorney and that the attorney acted upon them ; that such facts were so meagre and imperfect as to deceive the attorney; I instruct you that such advice, procured upon such a statement, does not constitute a defense to this action, and the prosecution cannot be justified upon advice thus obtained. So much gentlemen, for the question of probable cause. I believe that is all that is necessary for me to say upon that branch of the case. If the defendant acted in good faith and upon proper inquiry as already defined in making its complaint, your verdict should be for the defendant, Should you find that defendant, having possessed itself of the general facts of the case, to the extent which I have indicated, and placed them honestly before a competent 228 BENCH AND BAR IN CALIFORNIA. lawyer, (although it may have been mistaken and these facts might not have existed), if it stated the testimony from which it had reason to believe the facts would be established to its attorney, and was advised by him that it had good grounds to act as it did, and upon such advice so taken, acted, your verdict should be for the defendant. To find for the plaintiff, you must find in his favor upon all of these propositions ; you must find that the defendant did not have probable cause for making the complaint, and did not act under the advice of a competent attorney, honestly and fairly obtained ; should you find for the defendant on any one of these propositions, your verdict will be for the defendant. Should you find for the plaintiff upon the questions thus far considered, your next inquiry will be as to the measure of damages. And first, as to the question of malice as connected with the question of damages. In most cases that are brought for torts, the law, from the wrongful act, presumes the malice without reference to the spirit or purpose of the act. This is termed malice in law, and when established, is sufficient to entitle a person to recover his actual damages. Besides this malice which the law implies from the wrongful act, without reference to the purpose of the wrongdoer, there is malice in fact, when the wrongful and unlawful act is committed for the purpose and with the intent to injure. In this case the law requires that the malice be proven. I instruct you that from the absence of probable cause you may find, as a matter of fact, malice or not. The law does not conclusively presume it, but, from the fact of the prosecution, where probable cause does not exist, the jury may find that there was malice. Malice, in fact, is always to be proved by testimony. It is not to be presumed. It is shown by testimony of the nature and character of the trespass complained of. If the defendant manifests a hostile, malignant purpose, an intention to injure ; if it shows a vicious, wrongful disposition, that it is not merely a mistake, to the extent of acting unjustly, but that it is done with a vicious heart, and for the purpose of injury, then you may assess punitive damages. But, if you find that there was no probable cause, and find from the absence of pro- bable cause, malice, then your verdict will be for the plaintiff, and the damages which you will assess will be conpensatory for what injury plaintiffhas sustained, for the actual sufferings he has undergone, and the actual loss which he has sustained from the wrong committed. That is the measure cf damages, where no element of actual malice entered into the act complained of. But, if beyond this, you find that the acts were done with a wicked purpose, with an intention to injure, and that that was a principal or controlling purpose on the part of the defendant, in causing, without probable cause, the arrest, in such a case the law permits youtc impose punitive or exemplary damages. . The question of compensation does not enter into that, but you will impose them in the nature of a fine, as a warning to others, and a civil punishment to the party who has been guilty of such a wrong. But, before damages of this character can be given, a purpose to injure as well as a want of probable cause, must be established by the plaintiff. For malice in law, the damages are compensatory only. For malice in fact, you may add to compensa- tory damages such exemplary damages as may serve as a warning to other wrongdoers. BENCH AND BAR IN CALIFORNIA. 229 It was a genuine surprise to his brother lawyers who heard it, when the unassuming gentleman to whom I will now direct the reader's attention, tes- tified on the witness stand on a certain occasion, "I have had more cases in the Supreme Court, and won more, than any other lawyer during my period at the bar." It was not vainglory. His record was not known to those present. He was a much younger man than now, and his quiet way of commanding success had betrayed no concern for his fame. He was now on the witness stand as a lawyer, called to testify on the subject of a lawyer's charge for pro- fessional services, and the attorney whose cause his testimony damaged, thought to subject him to a severe ordeal. It was in the course of a vigorous cross-examination that he was led to the utterance above quoted. Other lawyers there were who could point to more cases as theirs in our highest court, taking all the Reports together, but our lawyer witness expressly limited his statement to the period between his admission to the bar and the date of his testimony. We shall find it worth our while, pretty soon, to particularize and examine some of the many cases to which he made this general reference. Milton A. Wheaton was born in Oneida county, New York, November 14, 1830. He is of an old American family. His father was a wagon maker, and had the reputation of being able to make anything in the way of mechan- ical construction. His genius in this line became the inheritance of the son, as has been repeatedly evidenced by the latter' s masterful grasp of patent cases. The son went to school in his native county and entered Hamilton College, which is there located, in the year 185 1. He had maintained him- self by working on farms since he was twelve years old. At fourteen, he made butter and three kinds of cheese, besides milking the cows. In winter he was always at school, and at all times he was eager for books, possessed by the idea of getting an education. He withdrewfrom Hamilton College, after less then two years of study there, to accompany an uncle to California. An older brother had come to this State in 1850. Some young friends had returned home after a year in the new gold mines, with purses of about $2,000 each. Their good fortune and his uncle's invitation induced the student to leave his college, to which he never returned. He arrived in San Francisco by way of Panama on May 5th, 1853. He went at once into Butte county. The first work he did was chopping wood for a steam mill. Near the mill stood a dead forest of enormous sugar-pine. This he felled and cut up, at four dollars a cord. Out of the top of one of these pines he got twenty-one cords. In the next summer, (1854) he did teaming and freighting, and hauled lumber for Philip Cain & Co. In the summer of 1855, he commenced the study of law at 230 BENCH AND BAR IN CALIFORNIA. Sacramento, in the office of Carter & Hartley, and on the 1 5th of September, 1856, he was, after examination,, admitted to the bar by the Supreme Court. In January, 1857, he began practice in Suisun, Solano county. For eight years he made his home there in the heart of a very fertile section of the State, where land titles were generally unsettled, and the practice was very remunerative to good lawyers. During this period Mr. Wheaton had a brief partnership with John Doughty, who afterwards left the law and became a clergyman of the Swedenborgian church. He is the same gentleman who has now for many years so worthily filled the pulpit of his church in San Francisco. Mr. Wheaton had no other partnership than this. In looking over his early successes at the bar we again see the fruit of patient struggle. He had no bad habits. He loved work and study. His cast of mind was practical and serious. And he kept faith. He acquired as great a reputa- tion in the conduct of land cases, as he later won in San Francisco in the widely separated department of patent practice. Mr. Wheaton's first appeal to the Supreme Court was in a case of his own. The suit was commenced in the then District Court of the Seventh District, on August 1st, 1859, and was determined in the Supreme Court, in October, 1861. Scott, Vantine & Co. and one Dimockwere creditors of H. C. - Brown, of Solano County, and the firm named brought an attachment suit against Brown. FJeven days after this suit was instituted, Dimock purchased Brown's property against which the attachment was directed, and in turn sold it to Mr. Wheaton, who was his attorney and also attorney for Brown in the attach- ment suit. All of these parties had personal knowledge of the issuance of the attachment. When Brown made the deed to Dimock, it was under ad- vice of Mr. Wheaton, who, on the same day filed a demurrer for Brown in the attachment suit. He had examined the public records and found there was no judgment against Brown, and that no copy of the writ of attachment had been filed-in the Recorder's office. Eighteen days later, on September 24th, Scott, Vantine & Co. had judgment against Brown and placed an execution in the hands of the sheriff, who levied on the property in question and advertised it for sale. Mr. Wheaton then commenced suit in the same Court to enjoin the sale as creating a cloud upon his title to the property. The District Court dismissed the complaint and he appealed. In this his first appeal he had for his adversary John Currey, who was even then distinguished in the profession. Mr. Wheaton's point was that there had not been any valid attachment of the property. It is to be added here that after the deeds had passed from Brown to Dimock, and Dimock to Wheaton, the Sheriff filed a copy of the attachment in the Recorder's office. Mr. Wheaton urged that this was a void act, as the Sheriff had previously returned the original writ to the Clerk's office. John Currey, against this, contended that the attachment was levied in accordance with the statute ; BENCH AND BAR IN CALIFORNIA. 231 that the filing of the copy of the writ with the Recorder after Brown's deed to Dimock, was effectual because, by the doctrine of relation, "where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other act shall have relation." Judge Stephen J. Field delivered the opinion of the Supreme Court and Judge Joseph G. Baldwin concurred. It was decided that the filing- of the copy of the writ with the Recorder, after the original had been returned to the Clerk's office, was ineffectual for any purpose. Nor was the deed from Brown intended to defraud Scott, Vantine & Co., as he made it in payment of his debt to Dimock. The Supreme Court reversed the judgment of the District Court, and directed that court to enter a decree for Mr. Wheaton in accordance with the prayer of his complaint. The property involved was worth $5,000. (Wheaton vs. Neville et a/., loCal. 42). The case of Hidden vs. Jordan, 21 Cal. 93, is a leading authority on trusts. In November, 1857, the plaintiff was in possession of a tract of land in Solano County. The title was claimed by others and a litigation between all the parties was settled by plaintiff's admitting the opposing title and agreeing to purchase it. The deed of this title was executed to the defendant Jordan, who paid $6,000 in cash and his note for $1,780, payable in August, 1858, with interest at one per cent and secured by mortgage on the premises. The plaintiff continued to occupy and cultivate the farm. Of the $6,000 cash paid by defendant, the plaintiff contributed $2,000; and he, plaintiff, thereafter turned over to the defendant the entire rents and profits of the land during the years 1858, 1859 and i860, and from time to time also passed to defendant the plaintiff's promissory notes, as the interest accrued on the $4,000 cash contributed by defendant. The plaintiff took up some of these notes. In November, 1858, plaintiff sued the defendant in the District Court, complaining, after setting forth the foregoing facts, that the defendant claimed to be the owner of the land in his own right by virtue of his deed. The plaintiff alleged that when the deed was executed, there was a parol agree- ment between plaintiff and defendant that the former should repay to the latter, within two years, all the money the defendant had contributed to the purchase, with interest, and also pay the note which defendant had executed for the balance due ; and that upon such repayment in full, Jordan was to deed the land to plaintiff ; and that the note executed by defendant had already been paid from the proceeds of the crops of the land. The plaintiff further averred that he had tendered to defendant the full amount of money advanced by him, with interest as agreed upon, and defendant had refused to receive it ; and he prayed that he be allowed to pay the money into court and that defendant be decreed to execute to him a deed of the land. The defendant answered, denying all the material allegations. 232 BENCH AND BAR IN CALIFORNIA. The judgment of the District Court was, that defendant deed to plaintiff an undivided one-third of the property, and account to him for one-third of the rents and profits, less one-third of the amount of the note executed by defendant and since paid; that all the notes between the parties be given up and cancelled, and that defendant repay to plaintiff the $75 paid by the latter as interest. Both parties moved for a new trial which was denied, and plaintiff appealed from the judgment and from the order refusing a new trial. Mr. Wheaton was counsel for the appellant, and Joseph W. Winans for the respondent. Judge W. W. Cope delivered the opinion of the Supreme Court, Chief Justice Field, and Justice Norton concurring. It was held that the appellant was entitled to the whole of the land. The parties had made an agreement, and the fact that this agreement related to a matter of trust and confidence, coupled with the fact that plaintiff had paid part of the purchase price, was undoubtedly sufficient, said the court, to avoid the Statute of Frauds. ' 'What the defendant undertook to do was to purchase the land ; not a part of it, but the whole ; not for himself, but for the plaintiff ; and what he is attempting to do is to deprive the plaintiff of the benefit of the purchase. This, accord- ing to the decision in Bartlettvs. Pickersgill (2 Eden 515), he might succeed in doing if the whole of the purchase money had been paid by himself ; but, as the plaintiff paid a portion of it, he, plaintiff, is entitled to have the agreement enforced. * * * The plaintiff cannot be required to take less than the whole, for that was his bargain; and to allow the defendant to force him into the position of a joint purchaser, would be to sanction and legalize a fraud." The next sixteen volumes of the Reports abound with Mr. Wheaton' s cases. He made the appeal in Fllis vs. Jeans, his old antagonist before named, John Currey, having been associated with him in the trial of this case in the District Court. When it reached the Supreme Court in October, 1864, (and this was the third time it appeared there), John Currey was one of seven able men who composed that reorganized tribunal, and Mr. Wheaton made the argument for the appellants. In the decision, of course Judge Currey did not participate. The action had been commenced away back in February, 1856. It was ejectment, 500 acres in Solano. There were several defendants. The plaintiff claimed under the title of Vaca, who'se name is kept green by one of the Solano villages. The defendants derived title from the same source, excepting one of them (Jeans, whose name is fastened to the case), who exhibited no title. The title of the defendants was older than that of the plaintiff, the first deed in their deraignment having been executed by Vaca in 1849, while the first deed in the plaintiff's chain had been given by the accommodating Vaca in 1850. But this deed of 1850 was recorded in 1850, while the deed of 1849 was not recorded until 1856. BENCH AND BAR IN CALIFORNIA. 233 The judgment of the lower court was in favor of the plaintiffs and against all the defendants jointly. On appeal Mr. Wheaton urged that the judgment wa,s erroneous because it was a fact admitted that the plaintiff himself was in full possession of one hundred and eighty acres of the land at the time of the judgment and for years before, while the Court assessed the plaintiffs damages through the whole interval and on the whole area. The Supreme Court sustained this objection of Mr. Wheaton's. The Court, speaking through Justice Shafter, said, " This finding upon the subject of damages was undoubtedly erroneous, both in fact and in law. It is true that the defendants, in their answers, deny the plaintiffs title to the whole or any part of the five hundred acres ; but it is also true that the plaintiff could not recover damages for the use of land, of which the defendants had never dis- possessed him." P. W. S. Rayle, of Napa, counsel for the plaintiff, upon this, offered to file a release of all damages, and asked that the judgment of the District Court be permitted to stand, with damages released. Mr. Wheaton objected. He said the judgment had been reversed, not only for excessive damages, but for the further reason that the judgment had found that the defendants had dispossessed the plaintiff of the whole of the 500 acres, contrary to the admitted fact that he was in possession of 180 acres thereof. Mr. Rayle now offered to release the 180 acres from the operation of the judgment. Mr. Wheaton objected again, that there was nothing before the Supreme Court to show the location of the 180 acres occupied by the plaintiff. Mr. Rayle asked that the evidence in the trial below be looked into, and suggested that a survey be ordered to ascertain the lines, but the Court said that to grant this would be to exercise original rather than appellant jurisdiction. A new trial being ordered, this tedious case was tried twice more in the lower Court. Each time the jury disagreed. It was then compromised. Mr. Wheaton removed to San Francisco in the year 1865. Just afterward the Supreme Court passed on an appeal which he had taken some time before leaving Solano county. It was the case of Long vs. Neville, and the appel- late court, in its opinion, written by Chief Justice Sanderson, stated very clearly, and I believe for the first time, the class of cases in which notice of lis pendens must be filed. The plaintiff sued two men named Hull in ejectment. They made default and he obtained judgment against them for the possession of the land, and placed a writ of habere facias possessionem in the hands of the sheriff. But the sheriff refused to execute this writ because the parties sued were not then in possession, although another, one Brown, had come into the occupancy of the land, and held it adversely to plaintiff. The inter- esting fact was, that before plaintiff, in the ejectment suit, had recovered judgment, R. B. Ellis, who also claimed the land, had dispossessed the same defendants, by the hands of the same sheriff, in a suit under the act concerning 234 BENCH AND BAR IN CALIFORNIA. forcible entry and unlawful detainer. The sheriff, on receiving the second writ (in ejectment) refused, as stated, to execute it against the new comer, Brown. The plaintiff, by Mr. Wheaton, sued the sheriff for damages. loos- ing his case in the District Court, he appealed. The Supreme Court at first affirmed the judgment; sustaining the sheriff on the ground that no notice of lis pendens was filed in the ejectment suit. But Mr. Wheaton urged a rehearing, taking the position (against the opinion filed by the Court), that notice of lis pendens is not requisite or proper in ejectment suits, but that such notice is essential only in actions affecting land titles. He argued that judgment in an action of ejectment did not operate to transfer or establish title, but possession only ; that the title remained precisely where it was before. In this view he prevailed, the Supreme Court granting a rehearing, and reversing the judgment of the Court below. (Long vs. Neville, 29 Cal. 132). In the case of Cannon vs. Stockman (36 Cal. 535), another of Mr. Wheaton's appeals, the District Court instructed the jury that, the action being to recover land, and the defendant pleading the statute of limitations, it was necessary for the defendant to show that he had been in the continued exclusive possession for five years next preceding the commencement of the suit. Mr. Wheaton point- ed this out as error, and the appellate court very positively sustained his objection. He had also asked the lower court to instruct that "A party in possession of premises, claiming to own the same, may buy his peace by purchas- ing any outstanding title, or claim of title, without admitting such title or claim of title to be valid. ' ' This instruction the court refused to give, and on appeal, the refusal was pronounced to be " clearly error. " " The instruc- tion asked, states the law correctly," observed the Supreme Court, by Chief Justice Dorenzo Sawyer,- "and it should have been given in this case, for it was particularly applicable. ' ' It was decided in this case, that ' ' when a party has been in the adverse possession for five years, he thereby acquires a title," fee simple, "and if after he has thus become vested with a right, he - is ousted, even by the party holding the paper title, he can recover on his title acquired by his adverse possession at any time within five years after such ouster. ' ' The late Judge T. M. Swan was associated with Mr. Whea- ton in this case, but only in name. Mr. Wheaton did the work and pressed the successful appeal alone. It was in the year 1868, three years after his removal to San Francisco, that Mr. Wheaton began his active and long career in what has since been his chief line of practice. I refer of course to his acknowledged leadership in patent cases. His connection with the great suit of N. W. Spaulding & Co. vs. Tucker & Putman, agents of the American Saw Company, was an example of that "tide in the affairs of men, which, taken at the flood, leads on to fortune." BENCH AND BAR IN CALIFORNIA. 235 Nathan W. Spaulding, Assistant United States Treasurer at San Fran- cisco from May 5th, 1881, to August 20th, 1885, came to California in the year 1851, from Maine, where he was born September 24th, 1829. At a comparatively early date in his long career, remarkable for achievements in business and invention, he made the discovery, of which the litigation now to be noticed was a product. It was at Sacramento in 1859, where he had a shop for the repair and sale of saws. The discovery was an improved method for fixing teeth in circular saws. Inserted tooth saws had been known for many years to possess great advantages over solid tooth saws. Teeth made separate from the saw plate could be tempered better and formed into better shape for fast and easy cutters than when made out of and being a part of the saw plate itself, and could be replaced when damaged. But these and other advantages of inserted tooth saws could not be made avail- able, on account of the tendency of the saw plate to crack from the corners of the sockets in which the teeth were inserted. These sockets had always had square corners. Mr. Spaulding by experiment found that a blow from a sledge would not crack the saw plate, but that the fracture occurred while the saw was in motion, subjected to the various strains, called by experts the side strain, the twisting strain and the splitting strain. He found by care- ful investigation that the strain and constant vibration incident upon the use of the saw, caused crystalization of the metal at this point, and with a powerful glass minute crystals and fractures could at first be observed which soon developed into cracks that before long ruined the saw plate. No such defects proceeded from any other part of the socket. The happy thought occurred to the inventive mind in search of ways and means to accomplish ends, that if the point of difficulty was in all cases at the angle of the socket what would be the result if there were no angles? Numerous practical tests were made to demonstrate the truth of the idea, and the problem was solved. He simply made the corners of the socket round, or as Mr. Wheaton expressed it in one of his briefs, he used circular lines in forming the j unction of the base and sides of the sockets, or, as the letters patent afterwards stated, he used circular lines for the sockets at the base or other places therein where the pressure or force applies. A beautiful effect was secured, a great result was accomplished, no less than a perfect protection against the cracking of the saw plate. A revolution was wrought in the manufacture of lumber. At the trial of Spaulding's patent cases many of our largest and most practical millmen testified to the great improvement made by Mr. Spaulding which in some instances increased the output of their mills twenty-five per cent. "When we consider the colossal proportions of the industry and capital affected we may form some conception of the value of this discovery. Mr. Spaulding's application to the Government for a patent was at first rejected, as I find on reading the brief of counsel referred to, which is a very 236 BENCH AND BAR IN CALIFORNIA. interesting and comprehensive paper. The nature of the invention was not grasped. But when proof was introduced to them showing the great effect produced by the use of circular lines in a saw socket, they looked deeper. A discovery of incalculable value was apparent. The letters patent applied for were issued. A flow of gold came in to the inventor from appreciative mill owners. The American Saw Company, having its headquarters at New York City, sent to the Pacific Coast a large lot of saws equipped according to the new method and'proceeded to undersell the patentee in this market. Mr. Spaulding, as soon as he could, put a stop to this, by injunction suit. Other infringements followed by William Tucker and S. O. Putnam, and others. Mr. Spaulding sued these parties in their individual capacity,, but always declared that they were the agents of the American Saw Company, and that that company made their fight in this great suit. There never has been in our courts a series of law suits more persistently or bitterly contested ; unlimited capital and talent and every thing that either could control to break down Spaulding's patent were arrayed on one side, while the other was nerved by the consciousness of right, and a bulldog deter- mination to sustain a principle, on the part of both client and counsel. It is reported that over $70,000 was expended by the parties thereto in these contests. Over two hundred witnesses were examined in one of these suits ; these witnesses were brought to court from all over the United States and some from Canada. The mountains of all New England were rummaged, the rivers dredged, old wells cleaned out, and obscure memories were dug up and made to do duty for the defence. Saw teeth were altered to conform to the desired shape, and everything else was done that craft could do to defeat the Spaulding patent, regardless of expense. It is a curious fact that Mr. Spaulding had been turned away by several of. the most eminent of our lawyers, to whom he had successively applied to take his case, before a friend directed him to Mr. Wheaton. The latter, it has already been perceived, was not known as a patent lawyer ; indeed, he had as yet no practice in that line, and his name had not been seen in the Patent Office at Washington. But it was known to some who had met him on other fields of trial, that he was not only a sound and safe lawyer, but pos- sessed genius in mechanical construction. So, when the perplexed inventor was telling to Abner Doble one day, the difficulty he had in obtaining a com- petent lawyer, "Go to Wheaton," said Mr. Doble; "he knows something about patents. And he is a mechanic, and a good lawyer." The inventor found that this was true. He had not met Mr. Wheaton before, but his visit to him on that occasion was the beginning of a protracted connection as law- yer and client, and of a personal friendship which has been close and un- broken. BENCH AND BAR IN CALIFORNIA. 237 In this suit against the emissaries of the American Saw Company, Mr. Wheaton had Hall McAllister for his adversary. George Gifford, of New York City, since deceased, but then probably holding the first place at the American Bar in patent cases, was also employed for the defense, and de- voted himself to the examination of witnesses before masters in chancery in eastern cities. In this way was the evidence taken, the suit being in equity in the United States Circuit Court at San Francisco. The question was, Had there been a public use of Mr. Spaulding's discovery before? In gathering evidence and attending examinations in the East, Mr. Wheaton expended $5,000 of his client's money in a period of six weeks. As will be granted, it was an arduous and costly controversy. In the cloud of witnesses for the de- fense was R. M. Hoe, patentee of the Hoe printing press. He testified that R. M. Hoe & Co. had made use of the same thing on which Mr. Spaulding had received letters patent, in the year 1837. This and all like evidence was really destroyed by Mr. Wheaton's cross-examination. When the evidence was all in and reviewed he was enabled to argue logically that rounding the junction of the base and sides of the sockets was an original conception of his client's, and was a very great and valuable improvement upon the saw, and patentable. It came within that class of improvements which are called com- binations, the form being one of the elements of the combination. He argued his side of the case alone, and showed that where form is employed to pro- duce a new effect, it is as much a subject of a patent as any other device. I will offer in evidence here this extract from his exhaustive brief : "We are saying, perhaps, more than we ought to, upon the question of the patenta- bility of the plaintiff's improvement. That he has made a very great improvement upon saws is undisputed. If he was the first inventor or discoverer of that improvement, then his patent is valid, and meets the full requirements of the law, however experts, skill and ingenuity may try to confound that improvement with other things of older date. The mechanical inventor's skill is mechanical skill, and nothing else, and in law all abstract principles are considered old, and every real invention (which does not include accidental patentable discoveries) is made up of old principles, old materials, and mechanical skill, and generally is only new combinations of old devices. The farthest limit of invention only includes the taking of materials furnished by nature and working them into such combination and shape that by them we can grasp principles and agents in nature, and render them subservient to the uses of man. The inventor does nothing but put into new forms and use old principles and old materials. He creates nothing. He uses nothing but materials and mechanical ingenuity, which is only another name for the higher order of mechanical skill." Hall McAllister presented a full and learned brief in reply. He fought this case with all that "Satanic industry" which Gen. W. H. I,. Barnes once referred to him as possessing. (Argument in Jessup Will Case, before Superior Court, Judge Coffey, at San Francisco, 1888.) In his brief in this battle of the saws, Mr. McAllister introduced Satan, by the way. He undertook to be very severe on the patentee personally, but it is noticeable that one of his 238 BENCH AND BAR IN CALIFORNIA. headings, in italics, reads: "Spaulding's indefatigable assiduity in his appli- cations for a patent illustrates the tenacity of his character." Mr. Spaulding has been heard to say that he considered this a large compliment from a great' legal light. And this counsel's personal thrusts are relieved by the humor that is wont to parallel his reason — as this: "We claim form is of the essence of this invention, and plaintiff should be confined to his particular form. If he is not to be controlled by his diagrams, then every possi- ble form of teeth for saws inserted on circular lines is embraced by this patent. A quarter circle; a semi-circular tooth; an entire circular base; an oval-shaped tooth; segments of circles; all are embraced. It is an elastic patent, a bed of Procrustes which will fit everything. It is indefinite shape on circular lines; it is a circular, or semi-circu- lar, or partially circular, configuration. It is a conformation with round corners. It is an indescribable circumference, or fraction of a circumference. It is a curve, or roundlet, or cycloid, or zone, multiform and heterogeneous. If we may compare small things with great, it is well described by Milton in his account of that shape which Satan encountered as he explored his solitary flight towards the thrice three-fold gates of Hell: The other shape, If shape it might be called, that shape had none Distinguishable in member, joint or limb." The result of this suit was a judgment for Mr. Spaulding, fully sustaining his patent. In a recent conversation with Mr. N. W. Spaulding, of which Mr. Wheaton was the subject, the great inventor bore strong testimony to the high character of his counsel and to the latter's genius for the line of law business in which he has become so celebrated. Mr. Spaulding is not given to exaggera- tion, far from it, but has a most discriminating mind and is judicious in statement. His encomiums were pleasant to the ear, and I remarked to him that his was strong praise indeed, coming from one who knew well whereof he spoke. " Why shouldn't I speak well of him," he replied. " He is both lawyer and mechanic. He has great inventive genius. He understands his business and tries his cases admirably. He argues with power and his briefs are very fine. You have seen a fine buggy horse that would' nt pull well when harnessed with another. Wheaton has a peculiar way of getting at the core of a thing, and he must have his way in trying a case. After he had won all my cases, I went to him and asked him how much I owed him. He said, ' You don't owe me anything !' He recognized that in conducting my business to a successful issue he had thoroughly equipped himself as a lawyer in patent cases, and that his fame and fortune were assured. Of course I had paid him considerable money during the progress of our litiga- tion, but I expected to pay him a great deal more." Mr. Gifford, the leading patent lawyer of the East, before named, and opposed to Mr. Wheaton in this litigation, afterward sent the lat- ter a handsome retainer in another patent case, which, however, was never tried. Indeed, Mr. Wheaton's fame in this line of cases very soon became as wide as the continent. He is called to other States frequently to try some BENCH AND BAR IN CALIFORNIA. 239 important patent case, and in the course of his practice he has argued quite a number of causes before the United States Supreme Court. At present he has cases pending in Boston, Chicago, and St. I/)uis. I cannot omit special mention of the case of Strauss vs. King & Co. Mr. Wheaton won this case for Iyevi Strauss & Co., in the United States Circuit Court for New York, before Judge Blatchford, now of the United States Supreme Court. The litigation was over a patent on an invention used in riveted goods, principally in heavy duck overalls worn by hunters. J. W. Davis, a tailor, a resident of the State of Nevada, invented this contrivance and obtained letters patent. He assigned his patent to I^evi Strauss & Co. , of San Francisco. Their suit against King & Co., who were merchants of New York, was, of course, to put a stop to infringement by the latter. The witnesses examined in this case numbered 400, and there were over 3600 pages of printed testimony, besides a large number of exhibits. Mr. Wheaton was united in marriage with Miss Carrie C. Webster, at Suisun, December 24, 1862. She died in July, 1873. On September 24, 1876, Mr. Wheaton married Miss Dora Perine, also of Suisun. This lady lives and they have two daughters. A son by the first wife is now a young man. A comfortable home on the California street hill, has been the family dwell- ing since the year 1876. Mr. Wheaton has a moderate fortune. His law bflices are spacious and elegantly furnished, his library being one of the largest and most select. CHAPTER XVIII. 8. C. Hastings, First Chief Justice of the Supreme Court— Founder of Our Only College of law— His Early Career in Older States— Chief Justice of Iowa, and Member of Congress— A California Pioneer— Attorney-General in 1851— His Judicial Opinions— Beginning of His Great Wealth— A Philosopher With a. Midas Touch— Pereninal Humor— A Practical Joke on James B. Haggin and Lloyd Tevis— How the latter Got His Start— Interesting Facts About Haggin and Tevis— A Story on Hastings By the Elder Baldwin— Original and Amusing Views Touching Our last War— References to William H. Seward, Jefferson Davis, lewis Sanders, Jr., William M. lent, Dr. J. D. Whitney and others. A generation has passed away since, from the bench, Judge Hastings spoke the oracles of the law; and there are few of our oldtime lawyers who will be able to recall his last appearance in court. But the high stations to which he attained, the distinguished relations which he once bore to the profession in two States, the large place which he continues to fill in the business world, and his munificent gift to this commonwealth of its only college of law, which will make his name familiar to remote posterity, entitle him to a prominent chapter in this volume. Judge Hastings was born in Jefferson county, New York, November 22, 1814. His father, Robert C. Hastings, removed in early life from Boston, his native city, to Rhode Island, thence to central New York. He there married Miss Patience Brayton, whose family had been among the earliest settlers of that region. There were seven children of this marriage, all of whom attained majority. The elder Hastings died on a farm near Geneva, New York, when his son was ten years old. The family then removed to St. Lawrence county. There this son attended the Gouverneur Academy for six years, being under the special instruction of two tutors — graduates from Hamilton College. At the age of twenty, he was tendered and accepted the position of principal of Norwich Academy, in Chenango county, New York. This institution had gone into a sort of decline, but was inspired with new life under the administration of its young principal, who introduced the Hamiltonian system of instruction and the Angletean system of mathematics, and other branches of education. At the end of one year he resigned and went to Lawrence- burg, Indiana. There he pursued the study of law, first in the office of Daniel S. Mayor, afterwards in that of Hon. Amos Lane. He had, before removing from Norwich, read law for a few months in the office of Charles Thorpe, BENCH AND BAR IN CALIFORNIA. 24.I Esq., of that town. In the exciting Presidential campaign of 1836, he was editor of the Indiana Signal, and in that capacity gave a cordial support to Martin Van Buren. In December, 1836, he was admitted to the bar by the Circuit Court, at Terre Haute, Indiana, Judge Porter presiding. In January, 1837, he removed to Burlington, in what is now the State of Iowa, then known as the Black Hawk Purchase. He soon located at a little hamlet, which has grown into the city of Muscatine. All that vast region was then under the jurisdiction of the courts of the Territory of Wis- consin. Having, after another examination, been again admitted to the bar, Mr. Hastings commenced practice. He was soon appointed a Justice of the Peace by Governor Dodge, of Wisconsin Territory. He used to say that his jurisdiction covered the whole western territory, extending even to the Pacific ocean. He was a man of large stature, capable of great physical endurance, shrewd, energetic, alert in mind and body, simple in his tastes and habits, peculiarly adapted to the border, and was not to be found wanting in the ebb and flow of frontier life. When Iowa was admitted as a State, he was, probably, the best known and most popular of her citizens. As Justice of the Peace, he had but one case to try during his term. It was a criminal charge. He found the accused guilty of stealing $30 from a citizen, and $3 from the court, and sentenced him to be taken by the con- stable, to a grove near by, to be there tied to a tree, and to receive on his back thirty-three lashes — thirty for the theft from the citizen, and three for that from the court — then to be transported across the river to the Illinois shore, and banished from Iowa forever, The sentence was executed under the eye of the court, in the presence of a large crowd of people. When the Territory of Iowa was created in 1838, Mr. Hastings was elected, as a Democrat, a member of the lower branch of the legislature. He continued to represent his county, in either the House or Council, at every session of the legislature until the admission of Iowa as a State, in 1846. At one session he was President of the Council. He was usually a member of the Judiciary Committee, and as such did effective service in the shaping of important legislation. He reported from that committee the statute which was afterwards, for many years in Iowa and in Oregon, known as ' ' The Blue Book." During this period occurred the conflict between Iowa and Missouri, known as the Missouri War. The authorities of Clark county, Missouri, in the collection of State taxes had invaded the Territory of Iowa, being igno- rant of the exact location of the dividing line between the State and Terri- tory. An open rupture followed, Governor Boggs, of Missouri, and Gover- nor I^ucas, of Iowa, calling into the field their militia. The legislature of Iowa being in session, Mr. Hastings left his seat in the council to assume command of an armed force, composed of the "Muscatine Dragoons," and three other companies of militia. It was in the middle of a bleak winter ; 242 BENCH AND BAR IN CALIFORNIA. the troops had no tents, no forage for their horses, little food and clothing, and no arms, except pistols and bowie knives. It was anything but a formi- dable invading force. The expedition was not fruitless, however. The Sheriff of Clark county, Missouri, who was especially obnoxious to the invaders, was captured without bloodshed, taken back to Iowa, and lodged in the Muscatine county jail. Major Hastings was about returning with hia force to Missouri, where a pitched battle would probably have been fought, as the Missouri militia had prepared to meet him, but peace was suddenly declared between the two powers, and the Iowa army was disbanded. Its leader was then appointed a Major on the Governor's staff. I/ilburn W. Boggs, the Governor above referred to, lived a long, honor- able and eventful life. After the Missouri-Iowa trouble, he met Major Hast- ings many times in California. Here, on neutral soil, the two old enemies often went through the ceremony of burying the hatchet. Governor Boggs, a native of Kentucky, was born in 1798. He was in the war of 1812, a mere boy. He was at the battle of Thames, or Tippecanoe. His second wife was granddaughter of Daniel Boone. About 1825 he removed to western Mis- souri. He selected the site of the old town of Independence, of which, it is said, he was for many years the merchant, lawyer, doctor and postmaster. He was in the Council of Missouri Territory, then in the Senate of the State, then lieutenant Governor, then Governor. He came to California, at the head of a large party, in 1846, settling first at Sonoma, where he became Alcalde, and afterwards in Napa valley, where, for many years, he carried on, on an extensive scale, the business of farming and importing blooded cattle. He died in 1861, leaving a widow, several grown children and many grandchildren. His widow died in 1880. In 1846, upon the admission of Iowa into the Union, Major Hastings took his seat as her first Representative in the Lower House of Congress. This was the Twenty-ninth, or Mexican war, Congress. There was only one mem- ber of that body younger than he. He there met John Quincy Adams, Abraham Lincoln, Stephen A. Douglas, Andrew Johnson, and others of national fame. At the end of his congressional term, he was appointed by the Governor Chief Justice of the Supreme Court of Iowa. This position he occupied only one year. The year 1849 had arrived. He had won high political honors, but had amassed little money. What means he had been able to accumulate, he had invested in unproductive lands in Iowa. He was beginning to realize the hollowness of fame and the substantiality of coin. The news from the far West stirred him. The spring of '49 found him in the new Dorado among the earliest of the Argonauts. His short term as Chief Justice of Iowa had just ended, and he had left his family in that State, and had made the journey overland, bringing with him very little means. BENCH AND BAR IN CALIFORNIA. 243 "There is a tide in the affairs of men Which, taken at flood, leads on to fortune ; Omitted, all the voyage of their life Is bound in shallows and in miseries." Judge Hastings came to California at some sacrifice, much inconvenience and with some misgivings ; but he came at just the right time, and he found opportunities which he improved. He settled at Benicia. About six months after his arrival, he was chosen by our first Legislature, (December 20, 1849), Chief Justice of the Supreme Court, his associates being Henry A. Lyons and Nathaniel Bennett, both ot whom are deceased. He was glad to accept this honor, as it would make him widely known in the new State and the salary was greater than that which he had surrendered in Iowa. His term was two years, which he served out. His opinions from the bench will be noticed hereafter. Judge Hastings stepped from the Supreme bench into the office of Attor- ney General, to which the people elected him in the fall of 185 1. He made no speeches in the campaign, but his Whig opponent, who was quite an orator, canvassed the State. The salary of a Supreme Judge at that day, $10,000 per annum, proved to be a poor support for a professional man with a large family. While on the bench, of course, Judge Hastings was debarred from practice, and at the end of his term he was in very straitened circumstances. As Attorney General, he was enabled to conduct some law business on his own account. He soon entered upon a career of prosperity and the attain- ment of wealth. The foundation, the nucleus of Judge Hastings' colossal fortune was the money which he received in the shape of law fees while Attorney General. He held this office two years, and then continued law practice. He also became a member of the Sacramento banking firm of Henley, Hastings & Co. This firm failed, but Judge Hastings himself was not much hurt by it. About this time he began to get remittances from Iowa, from the sale of his lands. Although he was to become lord of a large landed estate, quite a long time elapsed, after his arrival here, before he invested in real property. He loaned his money on undoubted security, at three to five per cent, per month interest. After leaving the office of Attorney General, he followed his pro- fession a year or two, meanwhile keeping large sums of money out on loan, then gave up professional life for good. He now turned his attention to city lots and country lands, gradually acquiring about one hundred pieces of real estate in San Francisco, and bought large tracts in Solano, Napa, Lake and Sacramento counties. In 1862, he was worth $900,000, which he owed chiefly to appreciation in real estate. Twenty years later he was worth two and a half millions of dollars. The San Francisco property, standing in his name down to December, 1887, was valued at $150,000, he having, about ten 244 BBNCH AND BAR IN CALIFORNIA. years before, conveyed to his son, C. F. D. Hastings, in trust for all his chil- dren, city realty of the assessed value of half a million. Besides making other munificent provisions for his children, he presented to his two eldest sons an extensive and fully stocked farm in Solano county. In Napa county he reserved three large estates, enriched with vineyards, prolific in their yield of the choicest grapes. In other counties he turned his attention to the growing of wheat and wool on a large scale. Judge Hastings was the first of our capitalists to erect dwellings for the poor of San Francisco. About A.D., 1861, he put up a large number of cheap structures of four rooms each, in the south end of the city, which he rented for ten dollars per month — a figure surprisingly low for that day. The houses were always in demand. I do not know how much philanthropy had to do with this act, but as a business venture it was a great success, the rent of the houses — small as it was — yielding a heavy interest on the invest ment — much larger than could be obtained from costly business structures. Judge Hastings was married to Miss Azalea Brodt, at Muscatine, Iowa, in 1845. She, with her children, joined her husband at Benicia in 1 85 1. At that town the family home was located for many years. Mrs. Hastings died at Pau, in the south of France, in 1876. There were eight children ot the marriage — Marshall, C. F. D., Robert P., Douglas, Clara t,., Flora A., FJla and I^ellia. All are living, except Marshall and Douglas. I might well be forgiven for a moment's affectionate pause at the mention of Marshall's name. He had long passed his majority when called away. The heir of great wealth, he was yet never conceited, arrogant or puffed up. He was no money wor- shiper. He selected his companions without regard to their purses. His genuine friends were a host. They still remember his genial and generous qualities, and " Pray for his gallant spirit's bright repose." In founding the college of law which bears his name, Judge Hastings secured his fame for many coming generations as a friend of learning, and did an act which will ever inspire his children and his children's children with honorable pride. For the establishment of this institution, the only law college in the State, he paid into the State treasury, in 1878, the sum of $100,000. He made it a condition that no more than the amount of interest which would accrue from that sum at seven per cent per annum, should be expended for compensation to instructors. Also, that the privileges and benefits of the college should not be confined to such students as intended to follow the legal profession, but should be freely extended to all. He has declared his conviction that the study of law by the students generally in all our institutions of learning would greatly contribute to the security of free government and to the advancement and elevation of the people. BENCH AND BAR IN CALIFORNIA. 245 In order to formally accept the donation and to carry out the views of the donor, the legislature of 1878 passed an act creating the college. By that act the officers were declared to be a Dean, Register and eight Direc- tors — the Directors being named as Joseph P. Hoge, W. W. Cope, Delos Lake, Samuel M. Wilson, O. P. Evans, Thos. B. Bishop, John R. Sharp- stein and Thoman I. Bergin, and the Dean and Register to be appointed by the Directors. The act provided further that the college should affiliate with the University of the State and be the law department thereof; that the sum of seven per cent, per annum upon one hundred thousand dollars should be paid by the State, in two semi-annual payments, to the Directors of the college, and that any person might establish a professorship in his own name, by paying to the Directors thirty thousand dollars. The Directors very appropriately asked Judge Hastings to take the position of Dean, and he complied. After some years he relinquished this post and his son Robert P. was made his successor therein, the Judge taking the Pro- fessorship of Comparative Jurisprudence. Thirty dollars is the limit of expense to the student-$io for each year, or for admission to each class. This college although technically a part oi,the State University, is wholly located at San Francisco. Its students are accorded the privileges of the San Francisco Law Library, and many of them pass their hours of study in the hall of that institution. The act of the legislature, before referred to, declares that students who receive diplomas from the law college shall be entitled to prac- tice in all the courts of the State, subject to the right of the Chief Justice of the Supreme Court to order an examination, as in other cases. Judge Hastings was never particularly adapted to the legal profession, although he has given signal proof of his partiality for it, selected it in youth for his life pursuit, and was enabled through its instrumentality to lay the solid foundation of a great fortune. He was not cut out for either a lawyer or a judge. He is nervous, impatient, too eager to have done with the work on hand — not given to sounding the depths of inquiry. As a speaker he is ready, pointed, earnest, and exacts respectful attention, but has none of the arts or graces of the orator or rhetorician. His opinions from the bench read well, but are abbreviated, and for that cause are of little value to the lawyer or law student. They are "opinions" in too strict a sense — con- clusions almost barren of exposition. His decisions in the Iowa Reports number forty-four, all rendered in one year and reported in the First Iowa, while those in California are thirty-two in two years, and all in the First California. In Iowa he did his full share of the work of the court ; in Cal- ifornia he did much less than his proportion, Judge Bennett doing most of the work. His opinions in the two States are of about the same average length — less than one octavo page of goodsized type. Of course the merit of a judicial opinion is not proportionate to its length. Some Judges (as a 2 4 6 BENCH AND BAR IN CALIFORNIA. New York jurist once said of a certain lawyer) in trying to be tediously clear, are clearly tedious. But it is not probable that a Supreme Judge can dispose of seventy-six appeals, take them as they come, without encounter- ing questions which challenge profound study, specious propositions which demand subtle analysis, and confused masses of evidence which require patient sifting and arrangement — in other words, without having occasion, now and then to write an opinion, which is not an opinion merely, but an exhaustive dissertation as well. A high appellate judge should have the ability, as he will certainly find the occasion, to " hold a thought," as did Socrates, and ' ' inspect it as a mineralogist inspects a mineral — to strip off layer after layer of logic as one peels off the plates of mica from a specimen." But Judge Hastings' native tact and shrewdness always made him a welcome associate on important trials. He was a good man to counsel with in complicated cases. He was " smart," to use a word frequently applied to lawyers. In the preparation of a case, as well as in court during the trial, he was full of happy suggestions. Sometimes quaint, there was always something in his hints and promptings, and they were generally followed with happy results. The first volume of Iowa Reports shows that, before he went on the bench of the Supreme Court of that State, he was counsel in half of the cases appealed to that tribunal. Our hale old pioneer Judge is very tall in stature, and powerfully built ; athletic, hardy, quick in movement, of dark complexion, has a finely shaped head and a countenance open, lively and playful. He is keen witted and keen eyed, light hearted, full of fun and has extracted from existence a vast deal of life. He has a large number of men and many agents employed on his farms and in his various enterprises, but he is constantly swinging around the circle of his possessions to give them his personal oversight. His large responsi- bilities are not cares to him. With all his push and activity there is a good deal of the philosopher about him. His business sagacity is extraordinary. He has a Midas touch. His enterprises and investments have always been for- tunate, sometimes against the judgment and protests of his friends. He has always let mining stocks severely alone. The Judge has spent considerable time in travel and observation abroad. When Governor Seward, after leaving the office of Secretary of State, made, in 1869, a trip to Alaska, which territory had just been acquired by the United States through his diplomacy, Judge Hastings, who was an old friend of Seward, accompanied the latter, at his invitation. He reciprocated this attention when Governor Seward tarried at San Francisco on his voyage around the world. During their stay of two weeks the Gov- ernor and his party were the guests of Judge Hastings, and were present at BENCH AND BAR IN CALIFORNIA. 247 the marriage of the latter's eldest daughter to Colonel Catherwood. It was then agreed between Governor Seward and Judge Hastings that, upon the completion of the former's world voyage, the two should meet at New York City and sail for the North Sea, to explore the northwest coast of Norway. Upon his return to New York City, the Governor by letter requested the Judge to meet him, and suggested that they, before setting out on their voyage to the North Sea, pass a few months at Auburn, the Governor's home. The Judge repaired to New York City, where he learned the fact of Governer Seward's death at Auburn. He then returned to California. He was a great admirer of Seward, although they differed in both politics and religion. He regarded the "Sage of Auburn" as the greatest ethnological philosopher of his time. Judge Hastings' conversation is charged with wit and pleasantry. His humor is perennial. He is as fond of a joke as was the elder Judge Baldwin. He has said more good things than did Judge Baldwin, although his pleasantries are on the whole below the Baldwin standard and will have shorter life. I am reminded of the brief partnership in law between Baldwin and James B. Haggin, who has of late years devoted himself chiefly to breeding and speeding blooded horses. Haggin is a true lawyer, well grounded in the living principles of the science. He withdrew from practice about the same time Hastings did, and for the same reason; he had realized more than his wildest dreams in the line of money getting, and had survived all incentive to forensic effort, all ambition for professional fame, Baldwin & Haggin had their office in Court Block. That other Midas, L,loyd Tevis, Haggin's business partner, had an office adjoining, and Hastings' office was next to that of Tevis. Haggin and Tevis married sisters, accom- plished and queenly women, daughters of the late Colonel I,ewis Sanders, a Mississippian, who, very many years ago, gave Jefferson Davis his first ' 'send off" in political life; he was very influential in Mississippi politics, and was the spokesman of Davis in the convention which nominated the latter for Governor. Haggin & Tevis are also partners in business — that is, they have pooled their capital — and have been thus together for thirty- two years! They are also warm personal friends, and are both Kentuckians. All resemblance between them here ends. Haggin is silent, phlegmatic, cold, imper- turbable. He never laughs, and rarely smiles. Tevis — who, by the way is admitted to the bar also — is a man not far removed from Hastings. He is vivacious, talkative, active, ubiquitous. His skill as a financier, his business diplomacy, tested in conflicts between great corporations, and his brilliant triumphs in the commercial world, have crowned him the monarch of moneyed men. From this it might appear that if either were given to speculation, it would be Tevis, but not so. He feels his way as though he were blind; while the silent, unruffled 248 BENCH AND BAR IN CALIFORNIA. Haggin has made many uncertain ventures in mining stocks. They turned out well, however. Haggin, in 1862, sold out to William M. I^ent his Gold & Curry stock— -feet they called it then — at an immense advance upon his investment. Then Tevis, who had been long disquieted, was happy again. "He did magnificently," said Tevis; "still, my advice to him was correct. We are doing a splendid business, and a safe business. We ought to let mining stocks alone." Tevis is the head of the great banking and express business of Wells, Fargo & Co., but as he is also, or was, a lawyer, he is in a measure my prop- erty, and so long and close were his relations with Hastings that, before re- turning to my subject, I cannot forbear telling how Tevis got his start in life. I/loyd Tevis came overland to California in 1850. He pitched his tent at Sacramento. "I owe my fortune in life," I have heard him say, <- to my good penmanship." He had no money, and just then felt a woe-begone sen- sation which he has never experienced since. He was a rapid and beautiful penman. He now writes too much to write well — more, probably, than any pther man in California, and sometimes his signatures, as President of Wells, Fargo & Co., are burlesques upon the old-time autograph. In his strait in 1850 he thought of the County Recorder's office. Happy idea ! "Can I get some copying to do?" he said to the Recorder, as he entered the latter's office next morning. "I am a rapid penman, and would like to give you a specimen of what I can do." The Recorder said nothing for a moment, for the applicant immediately commenced writing his "specimen." Write on ! Write plainly, and swiftly, and roundly, and grandly, young applicant ! It is written, plainly and swiftly and roundly and grandly, in the book of fate — what ? We shall see. "Your penmanship, would, I think, be satisfactory to anybody," said the Recorder, slowly examining the proffered specimen; "but [it looked like a big But] I have three deputies, whom I pay $300 a month each, and, while my business is good, my deputies can do it all. I want no more help." If Tevis had walked out of the office, mad, without saying "Good-day!" that might have been his last opportunity. He didn't. "Will you permit me, sir," he asked, "to come to the office every morn- ing and write up the deeds, mortgages, etc., which the deputies may have left over on the close of the previous day ? If there should be no extra work, of course I will get nothing ; if the deputies leave over anything for the next day, I will do it and leave my compensation to you." "That is all right," said the functionary. BENCH AND BAR IN CALIFORNIA. 249 Tevis asked for and received a key to the office, and next morning he in- serted that key in its appropriate lock at seven o'clock. The deputies were to arrive at nine a. m. It was their custom to place in a certain tin box all papers left over for record on the following day. Tevis took every paper from that receptacle — there were ten or a dozen of them; he opened his big record book, and — then and there he started on his grand triumphal financial march through life. When nine o'clock and the deputies arrived there was nothing to be recorded. Things were at a standstill until fresh conveyances came in. This happened every day for a week or so, and the deputies, listless and lazy, not warned of the catastrophe impending, rather liked the help of the young intruder, and welcomed his daily presence. Alas, poor scribes ! "Now, Mr. Recorder," said Tevis one fine afternoon, just after the office had closed, and all the deputies had departed, "I hope you will let me make you a proposal." "Go on," was the reply. ' 'For a week or so I have done nearly all the work of this office. I can do all of it. Your clerical assistance now costs you $900 a month. How long can you afford to pay such salaries ? Do you expect the flush times will last forever ? Hear me. I will do the work of your three deputies — all of it — for the pay of one. What say you ?' ' "You will do all the work of this office for three hundred dollars per month ?" queried the official. "Yes, sir," said Tevis ; "and do it better than it has been done." He was "engaged." In that office he patiently and diligently labored until his employer's "little, brief authority" ended — over a year. He laid away $250 per month; and when his clerical services were wanted no more, he was a capitalist in miniature — and from the miniature he speedily developed into the colossal. Mr. Haggin just then joining him with a little money, they made a loan of one thousand dollars at ten per cent, per month, upon which they collected five thousand dollars interest before the principal was paid. ' 'When I came to California, ' ' said Tevis one day, to some friends, ' 'young, poor, ambitious, I had to decide whether I would strike for political fame or for money. I concluded to go for money." He went for it. When the war of the Rebellion was at its most rebellious latitude and longitude, intense animosity toward Southern men resident in San Francisco was cherished by a large part ot the community. Southerners here — among whom were some of the wealthiest citizens — were alarmed for the safety of all they held dear. General George Wright, afterwards lost on the Brother Jonathan, then commanded this department. The leading Southern men, 250 BENCH AND BAR IN CALIFORNIA. mostly large taxpayers, held a conference, at which it was agreed that an address or memorial should be sent to General Wright, in which the peace- able inclinations of Southerners here resident should be set forth, coupled with a request for security against mob violence. I/loyd Tevis was appointed to draft this paper. The memorial, as written by him, covered thirty-six pages of letter paper. At the request of Tevis I delivered this paper to General Wright. I forget what the General said upon receiving it, and do not know that he answered it. When Tevis handed it to me he said: "I have written these thirty-six pages without once putting a blot upon the paper or running my pen through a single word. To return to Judge Hastings and at the same time not part company with Haggin and Tevis for a moment longer, a practical joke recurs, played by the Judge on his two friends, about A. D, 1861, my authority being a former agent of the party of the first part. Messrs. H. and T. while not churchmen, are churchgoers, very regular in their habits, and watchful of their reputation for morality and virtue. From long before sunset to long after sunrise they are at their homes. Each is a model paterfamilias. At the time referred to, Judge Hastings, who never cared much for appearances, was lodging in a plainly furnished room in one of his shanties on Virginia street, his family being at Benicia. Haggin and Tevis had occasion to visit their office one night, and Hastings dropped in upon them. About ten o'clock all three started up Washington street in company (no cable lines then). When the entrance to the Bella Union Melodeon then on Washington street, fifty feet west of Kearny — was reached, Hastings stopped and said blandly: ' ' I say, Haggin, you and Tevis come in here with me just for a little while." " What is it?" they asked " I want to show you something artistic," replied Hastings; " come in; ' we'll not Stay long ; I'm going up the hill with you." He pulled them in. They followed their leader right up to the front row of seats. There were no vacant chairs, which added greatly to the Hastings' enjoyment. Just then the curtain rose on one of the sensual scenes of the programme, and voluptuous arms and so forth dazzled every eye. The scene was " Cupid taken captive by Hyella," so gracefully paraphrased by Tom Moore from the Latin of Andreas Negerius. "As fair Hyella, through the blooming grove, A wreath of many mingled flowerets wove, Within a rose a sleeping love she found, And with the twisted wreaths the baby bound. Awhile he struggled, and impatient tried To break the rosy bonds the virgin tied, But when he saw her bosom's milky swell, Her features where the eye of Jove might dwell, BENCH AND BAK IN CALIFORNIA. 25 1 And caught the ambrosial odors of her hair, Rich as the breathings' of Arabian air, 'O, Mother Venus,' said the raptured child, By charms of more than mortal bloom beguiled, 'Go seek another boy, thou'st lost thine own. Hyella's bosom shall be Cupid's throne.' " The representation was soon over, and Haggin and Tevis suddenly real- izing where they were, looked at each other and bolted, Hastings following. The latter would not accept any rebuke from his companions. He always insisted that the scene presented to them was full of beauty and sugges- tion. The elder Judge Baldwin used to tell this on Hastings : The latter was residing at Benicia, but he kept a barrel of money with Tevis in San Francisco. One day when he had been taking some very agreeable medicine for a cold, and felt somewhat exalted, he was approached v by a carpenter he knew and asked for a loan of a thousand dollars to enable the petitioner to open a well appointed carpenter shop, and establish him- self in business in good style. He promised to do the favor. The next day when he was looking at worldly affairs with other eyes, as it were, the car- penter waited on him and reminded him of his promise. Insisting that he did not recollect the occurrence of the previous day, the Judge being impor- tuned, very reluctantly gave his check on Tevis for a thousand dollars. The happy carpenter after expressing his thanks once for each dollar, went home, put on his best coat and hat, and started for the wharf to take the river boat for "the city." While waiting on the wharf he looked at his check. It bore no signature. The omission was never rectified. "When the late war broke out in this country, Judge Hastings very sen- tentiously stated his position. He was in favor of both secession and coercion. "I believe a State has the right to secede," he said, "and I believe the other States have a right to whip her back." Judge Baldwin and other Southern friends of his could not see just where the laugh came in here. "Haggin," said Hastings one day, during the war, the event of which was just beginning to cast its shadow before, "I'll tell you how this country might be reunited and its great armies provided for at the same time." [Grant had not yet climbed to the top of the ladder on one side, and Stonewall Jackson still survived on the other. It will be remembered that some wise statesmen, before the war closed, thought they foresaw danger to the political and social states from the sudden disbanding of the armies, and sending the soldiery without employment into every nook and corner of the land.] Haggin quietly inquired: "How?" 252 BENCH AND BAR IN CALIFORNIA. ' 'l^et the South consent to have its army incorporated with that of the North, and let the North consent to have Stonewall Jackson placed at the head of the combined forces." He paused. "What to do?" asked Haggin. "To lead them into Canada," he continued, "and to wrest from Great Britain every inch of land held by her on this continent. It could be done, and Uncle Sam would be rich enough to give every soldier, and every sol- dier's widow and orphan not only a farm, but a whole township. What do you think of it?" "I don't intend to think much about it," said Haggin. Judge Hastings has done considerable for education and science. He contributed to the foundation of St. Catharine's Convent and School at Benicia. He is a life member of the Society of California Pioneers and the Academy of Sciences. The two volumes of "Botany of the Pacific" were is- sued at his expense and that of a few other wealthy citizens of this State, whom he induced to contribute. He did this at the request of Professor Gilman, Sir Joseph Hooker and Dr. Asa Gray. His zeal and liberality were warmly acknowledged by Dr. J. D. Whitney in his prefatory note to the second volume. He is a good I^atin scholar, a great reader, and has gath- ered together books of every class, from every clime and of all ages. His library is large, well selected and contains a great number of rare works. He has now practically retired from the busy world, and his travels are probably over. He has become thoroughly weaned from Benicia and has settled him- self down for the balance of his days at Lakeport, I^ake county. He is Presi- dent of the principal bank of that section, the Bank of Ieard, very fair complexion, a dark eye and small hands and feet. His fea- ures were as finely cut as the lines of a cameo. He died at the age of forty- wo years from a disease of the stomach. Besides his widow he left two Laughters, one of whom became the wife of a farmer in West Virginia. CHAPTER XX. Joseph G. Baldwin— Something of the Delightful Author of "Party Leaders" and "Flush Times in Alabama" — Career as Lawyer and Judge— A Great Wit and Brilliant Man of Letters— Humor Overflowing from the Bench — Contrasted With. Stephen J. Field— A Bout With Tod Robinson— Skidmore's Equitable Defense- Anecdotes of Francis J. Dunn— References to 8. S. Prentiss, Chapman Johnson, and Other Great Men of Older Lands, and to Judge Alexander W. Baldwin, of Nevada. We have the testimony of that learned jurist, Stephen J. Field, and that peerless orator, S. S. Prentiss, and many others capable of wise criticism,, in support of Judge Baldwin's unsurpassed brilliance as a wit and humorist, his grace and power as a writer, his ability as a lawyer, and his wisdom as a judge. When Prentiss was about to embark on his last earthly journey — from New Orleans to Natchez — he, feeling that he was passing to another life, bade his friends good-bye, and, turning to Colonel Alexander Walker, of 1 the Delta, said : "Be sure to write my love to Joe Baldwin. I have written my last on earth. A great man is Joe. He has no superior as writer and lawyer. He comes the nearest to my idea of an universal genius." Judge Field, in his autobiography spoken of in Chapter XIV, makes, this allusion to his old judicial comrade : "My friendship for Baldwin com- menced long before he came to the bench, and it afterward warmed into the attachment of a brother. He had a great and generous heart. There was no virtue of which he did not possess a goodly portion. He was always brimful of humor, throwing off his jokes, which sparkled without burning, like the flashes of a rocket. There was no sting in his wit. You felt as full of merriment at one of his witticisms made at your expense as when it was played upon another. Yet he was a profound lawyer, and some of his opin- ions are models of style and reasoning. The opinion of the Supreme Court of California in Hart vs. Burnett (15 Cal., 530), prepared by him, is without precedent for the exhaustive learning and research which it exhibits upon the points discussed." Iyet us see what manner of man was this. The father of Joseph G. Baldwin was a native of Connecticut, and at an early age removed to Virginia, residing first at Staunton and finally settling at Lynchburg. He was devoted to mechanical invention, possessed of great ingenuity, yet was not practical, and his labors yielded him nothing. Some of his inventions, however, were turned to account by others. The old man,, BENCH AND BAR IN CALIFORNIA. 27 1 always in humble circumstances, yet lived quietly and without excitement, and attained the age of ninety years. Joseph G. Baldwin was born at Staunton, Augusta county, Virginia, January 22, 1815. His precocity was extraordinary. When twelve years of age he was a deputy clerk of the District Court of his county. Here he received lessons in the clerical details of law practice, which were of service to him in after life. At seventeen years of age he took editorial charge ot a newspaper in Buchanan, Rockbridge county. Two years later he removed to Alabama, "impelled" as he tells us in his "Flush Times," "by the gentle momentum of a lady's slipper." He does not, however, disclose who was the fair girl who disappointed him. It was — -I have it from an authentic source — a Miss Menzies, who afterwards married a son of Chapman Johnson. This Chapman Johnson was the leader of the Virginia bar, and possibly the great- est lawyer of his day and generation in the civilized world, Chief Justice Marshall excepted. While deputy clerk and editor young Baldwin had improved his leisure hours by reading law, for which he evinced a fondness at a very early age ; and, having law practice in immediate view, he went to the town of De Kalb, Alabama, where he continued his law studies and impatiently awaited his opportunity for admission to the bar. At De Kalb he met S. S. Prentiss. Between the two a very cordial friendship sprang up, which proved endur- ing. Baldwin had met one great soul congenial to his own. Some twenty years later, on the shores of the Pacific, he came in contact with another kindred genius — John B. Felton — afterwards his son-in-law. Upon attaining his majority, Baldwin removed again — this time to Sumpter county, Alabama, where he was admitted to the bar, and where he entered upon his professional career with rare pluck and enthusiasm. He represented that county in the State legislature. In politics he was a Whig. Henry Clay was to him, so he declared in his "Party Leaders," "the greatest orator, and, except Washington, the wisest statesman and most useful citizen this country ever called into her service." In 1844 Baldwin was nominated by the Whigs as one of their presiden- tial electors. He "stumped" his section of the State in that campaign. In 1849 his party nominated him for Congress. He was defeated by 250 votes by Colonel S. W. Inge, who, two years later, and in advance of Baldwin, re- moved to San Francisco. In Alabama Baldwin won a great reputation. He was known as a great jury lawyer. (In California he did not often appear before juries.) He had a large practice. The time which he could spare from his profes- sional duties he devoted to literature. The product was his celebrated ''Flush Times," a volume which has been the delight of two generations and which seems destined to enjoy a lasting popularity. "It was," said his 272 BENCH AND BAR IN CALIFORNIA. friend Howard, of Los Angeles, "the first literary essay of a mind crowded' with thought and replete with exquisite imagery — the primitive yield of a rich virgin soil — the gleeful bubbling of a full, and, till then, undisturbed fountain. * * * Apart from the emanations of convulsing wit that scin- tillate and sparkle along each page, this work has a higher charm of pure classic diction. It contains no violation of the most rigid literary taste, or the most elevated chastity of thought, and it almost groans under its affluence of cunning fantasies of language, and merry conceits and adroit suddenness of situations." While in Alabama, Baldwin also gave to the world his "Party Leaders,'-' being "Sketches of Thomas Jefferson, Alexander Hamilton, Andrew Jackson, Henry Clay, and John Randolph of Roanoke, including Notices of Many Other Distinguished American Statesmen." This work and its predecessor just mentioned, have enjoyed such wide fame that it would seem idle to more than mention them. In his "Party Leaders," however, there occur passages in regard to the character of Randolph of Roanoke, which have been applied by those who knew Baldwin, to the latter himself. The quotation from this noted work, given below, was, upon Baldwin's death, reproduced by the accomplished editor of the now defunct Sacramento Union, ' 'not only as a specimen of Baldwin's serious style, but on account of its partial applica- bility to his own intellectual traits :" RANDOLPH OF ROANOKE. He has had the misfortune which attaches to most men of fertile wit and brilliant powers. Men seem unwilling to accord multiplicity of gifts to any man. The same de- preciating incredulity which "shook its head at Murray for a wit, " and which made Elizabeth pronounce Bacon "a man of parts, but not deep in law," has denied to Ran- dolph, because of his showy qualities, the possession of stronger and higher powers. But we think that this judgment is partial and unjust. True, he had a most extraordinary endowment of wit and the lighter graces. He was, beyond all comparison, the wittiest man of his time. He overflowed with wit. He wasted more wit than men, charac- teristically witty, gave out. Sheridan had not the same ease and flow of wit ; the same spontaneity, aptness and raciness. Randolph's wit was much more than humor. It was a refined, wire-edged and diamond pointed common sense ; a sharp and shrewd sagacity, which, while it had the edge of sarcasm, had, also, the force of argument. Randolph had the rare faculty of interpreting for the crowd ; of translating in better and apter lan- guage the thoughts passingi in the nrnd of the hearer, who was delighted to find that Randolph was only thinking his thoughts. His verbal aptness was astonishing. When anything was to be characterized by an epithet, he at once characterized it by a word or phrase so striking and pat, that it created the surprise and pleasure which are the most marked effects of wit. He had the same aptness of quotation. No man made the re- sources of others more subservient to his own purposes. He did not merely appropriate. He gave a new value to the quoted sentence. There was as much genius in the selection and application as in the conception and expression of the idea. His ingenuity was very great. He had the faculty of seeing remote analogies and correspondences, and of accumulating around a dry, isolated and uninviting topic a multitude of images, facts, BENCH AND BAR IN CALIFORNIA. 273, suggestions and illustrations. His memory was upon the same scale. It was compre- hensive and retentive, taking in the whole superficies of the subject and the minutest details. His information extended to a large variety of subjects. In polite learning, es- pecially in the standard works of English literature, he was accomplished beyond most of the literati of his country ; and his taste and appreciation of the latent and patent beauties and excellences of the great classics were unsurpassed. Had he turned his attention to literature as a pursuit, it is not going too far to say that he would have en- riched, not merely American literature, but the English tongue, with some of the rarest contributions made in his day by genius to letters. He mastered history with like ease. He was supposed to have a more minute and accurate knowledge of geography than any man of his' country; and he even committed the book of heraldry of England to memory, -and could repeat the annals of the noble houses of that kingdom in their details. But, most largely developed of all his faculties, probably, was his quick, clear and deep com- prehension. His finely-toned and penetrative intellect possessed an acumen, a perspi- cuity which was as quick and vivid as lightning. His conclusions did not wait upon long and labored inductions. His mind, as by an instinctive insight, darted at once upon the core of the subject, and sprang, with an electric leap, upon the conclusicn. He started where most reasoners end. In concluding his essay upon Jefferson and Hamilton, Baldwin says : There is enough of glory for them all. Honor to every hand that was raised in that holy fight ! Honor to every tongue that spoke a word in season for the faith ! Honor to the Pen that drew the declaration which pronounced us free! Honor to the lips, afire with liberty, that seconded and supported its adoption! Honor to the stainless sword of the boy-votary, who, side by side with Washington, through the long war, strove to make that declaration good ! And honor in the highest, save to God, to the August Chief who was the presiding genius over camp and council ; winning our free- dom in the field and perpetuating it in the Cabinet ! And this of eloquence : The highest eloquence is the demonstration of the heroic. Such eloquence is, at last, but the self-manifestation of the heroic spirit in its highest form. All heroic minds are thus eloquent, whenever the qualities that make them heroic are aroused and called into vigorous action. Eloquence is the spirit of the man in operation. When such a soul acts it is eloquent in deeds; when it speaks, it is eloquent in words. Chatham and Mirabeau, Demosthenes, Henry, Jackson, Clay, Calhoun, alone in the Senate opposing the Mexican war, and Washington when aroused, as on the field of Monmouth, possessed this eloquence in an eminent degree; and when it is called into exercise common great- ness shrinks appalled and cowed before its imperial authority. It is the rarest and most infallible of the gifts and marks of greatness; for it displays in a burst of passionate energy the highest properties of man — great" will, great courage, great intellect — the forces that command and subdue mankind. Judge Baldwin married in Alabama a Miss White, by whom he had six children — four boys and two girls. He removed with his family to San Francisco in 1854. Arriving at a comparatively early day, bringing an enviable reputation as a lawyer and man of letters, and finding here a con- siderable number of active professional and business men from the States of his nativity and adoption, he quickly secured a good practice. He always had a predilection for politics. The old Whig party having disappeared, the 274 BENCH AND BAR IN CALIFORNIA. Northern Whigs becoming Republicans, and the Southern Whigs Democrats, Baldwin was no exception to the rule. He acted with the Democratic party from the time of his arrival in California until his death. In September, 1857, Hugh C. Murray, Chief Justice of the California Supreme Court, died. Peter H. Burnett, appointed by Governor Weller, acted until the next election, when Joseph G. Baldwin, who had received the Democratic nomi- nation, was chosen by the people. Judge Baldwin was on the bench of the California Supreme Court from October 2, 1858, to January 1, 1862. On leaving the bench he resumed law practice in San Francisco. Two years later he visited the East — the war then raging — and endeavored to procure a pass to go through the Union lines to see his aged father. He failed in this, and returned to this State without having seen the old gentleman, from whom he had parted nearly thirty years previously. After his return from the East, Judge Baldwin passed his time in San Francisco and Virginia City, following his profession in both places. These were "flush times," and, like most eminent lawyers who were here at that date, he reaped a golden harvest. His oldest son, Alexander W. Baldwin, was then a leading lawyer of Virginia City. The precocity inherited by the latter, and his extraordinary success at the bar, were fittingly mentioned by Judge E. W. McKinstry, from the bench, November 17, 1869. A. W. Baldwin was killed, in that month by a railroad accident, in Alameda county, California. Although but twenty-eight years of age, he was then Judge of the United States District Court for the State of Nevada. Judge McKinstry, then County Judge of San Francisco, upon adjourning his court out of regard for the memory of this young jurist, remarked as follows: As we approach the evening of life, we become accustomed to seeing those who began the day with us grow weary and drop out of the line of march. But when a man who commenced his career long after most of us, and yet who lived long enough to take an active and prominent part in the contest of life, is called away, we are startled and rudely awakened as from a dream, and learn that the worldly life we are pursuing, and with which, from habit, we have become so familiar is not unending. And when we see the victim of a catastrophe like that which has occurred so young, who has attained that wealth and honor which is supposed ordinarily to be the reward of half a century of labor, we become more impressed with the lesson, and more impressed, too, when death comes in so unexpected a guise. The applications of modern science and the useful|arts are intended to add to and increase the comforts and luxuries of peace. Yet when carrying death so suddenly, so unexpectedly, they become more effectually destructive than the most terrible weapons of war. Judge Alexander W. Baldwin commenced his career at an age when most members of the profession commenced them as undergraduates in our universities. And I recollect very well it was the proud privilege of his father — the distinguished gentleman who presided over the Supreme Court of this State — to hear from the lips of his son, then a lad of eighteen years, an argument which, for clearness of statement, logical arrangement and attractive eloquence, perhaps was never surpassed in his subsequent life by the gentleman just deceased. BENCH AND BAR IN CALIFORNIA. 275 At a very early day he went over to Nevada, and was there associated with Senator Stewart in the practice of his profession. In 1854 he was chosen one of the Presidential Electors in that State. In 1865 he was made United States District Judge for the State of Nevada at an age which I believe is unprecedented, unless, perhaps, in the case of Judge Hoffman, who was also appointed at an unusually early age. Now, it seems to me particularty fitting and appropriate when a man as distinguished as the late Judge Baldwin, is called away from our midst, that the members of the bar should unite in that testimonial of respect for his memory, which they are accustomed to , render in honor of the memory of the distinguished and illustrious members of the profession to which we all belong. Judge Baldwin had three other sons, all of whom were unusually gifted, ■exhibiting at an early age quickness and originality, and remarkable facility with the pen. All died in the dawn of manhood. A strange fatality seemed to wait upon the family for some years. Between 1873 and 1877 occurred the deaths of the elder Baldwin, his eldest son. Judge A. W. , his three other sons, Joseph G., Jr., JohnW., and Sidney, and his lamented son in-law, John B. Felton. The widow and two daughters, one the widow of Felton, survive. Judge Baldwin's distinguishing faculty as a lawyer was his logical power. He was a strong man as a reasoner. In argument he spoke the words of truth and soberness, and in a matchless manner. His iacility of illustration challenged admiration. In this, his perennial wit and humor were always serving him. In reply he was masterly. The reductio ad absur- dum was his forte. Rarely in California, but many times in Alabama, he displayed his powers before a jury. He would often compress a whole case in an epigram, or would throw off a sentence that would illuminate a princi- ple. Rapid in thought, clear in vision, he comprehended a case at first glance. Understanding it, he made others understand it by his illustration. And who could step into a law library and find so many authorities on a given point and digest them and apply them so quickly as he ? The great defect in his oratory was his voice. It was not agreeable and was not under control. He was S. S. Prentiss, without that marvelous voice. His sentences were rounded, pointed, polished, smooth-flowing, his wit more than abundant, his memory excellent, his information wide ; in conversation he was irresistible — but on the platform he could not talk like Prentiss or Baker. Who could ? Given a mellifluous voice, Baldwin would have made a great popular forensic orator. He had all the qualities but one. Before a court, no crowd present, speaking to legal questions, his manner was good and his voice was not noticed. With a voice that could thrill, he would have been a man of the masses — lacking it, his empire was chancery, and his unconquer- able weapon was the pen. Baldwin's fame as a jurist will rest chiefly upon his opinion in Hart vs. Burnett, before mentioned. I have quoted Judge Field to show the learning and research which that opinion exhibits. 276 BENCH AND BAR IN CALIFORNIA. Baldwin's opinions cover several volumes of the California Reports. Sometimes overruling prior decisions, they remain themselves unquestionable. They partake much of the quality of his style as a writer, and are conse- quently sprightly and vigorous. His unfailing fountain of humor bubbled over even on the bench. Off the bench it was characteristic and universal. His jests, anecdotes and stories still pass current among the bar, retaining the full force of their original interest. The annals of the law have developed a great deal calculated to excite merriment, and Judge Baldwin, although he was a profound lawyer, yet did his full share towards investing this stern science with the light mantle of mirth. The case of Knowles vs. Inched, reported in the twelfth volume of Cali- fornia Reports, page 213, was an action in equity to restrain the defendants, from prosecuting certain suits in San Francisco courts, and from leasing and conveying certain real estate in dispute. The plaintiff based his prayer for equitable relief upon the allegation that there had been a long course of vex- atious litigation between the parties, resulting in judgment for plaintiff, but that the defendant threatened to prosecute further actions against the plaintiff to harass and annoy the latter. The plaintiffs prayer was denied and he appealed. In deciding the cause in the Supreme Court, Judge Baldwin said. We must reprehend the practice, which is too common, of stuffing a transcript with irrelevant and unnecessary matter. The present case affords a remarkable illustration. The transcript contains some 233 pages, when everything essential to a review of the case might easily have been given in fifty. Besides the delays, unnecessary expense and labor thus created, the points are hid in this superfluous matter, and it frequently becomes more difficult to find out what they are than to decide them when found. The Practice act, so far from sanctioning any such course of proceeding, by implication rebukes it. Instead of copying into a statement for a new trial, or on an appeal, deeds and tran- scripts of records, when no point is made on the ^construction of the language, a brief statement of the instrument answers every purpose. * * * This case was referred to a referee, who, in his report, gives the history of the litiga- tion, which, for variety and extent is unexampled, considering the small value involved, This history, indeed, might afford an illustrative appendix to Scott's account of the celebrated suit of Peter Peebles vs. Plainstaines, or Dickens' report of the case of Jarndyce vs. Jarndyce. Indeed, it would appear that the only use to which the parties designed to put this lot was to make it the foundation of a lawsuit, which they have erected upon it ; an edifice divided from cellar to garret into all manner of secret chambers, involved passages and dark entries. The real parties to the controversy seem to have been too few in number to keep up the strife, and hence both sides have called in a relay of fresh partisans to figure in the fight, having impressed them by means of sham deeds and fraudulent conveyances. Perjury is charged, with no lack of nervous expressions, upon the respective sides, and the lower arts of forensic warfare, such as snap judgment and partial statements of facts, as we are informed by counsel, give character and variety to the proceeding. Ten solid pages of transcript paper, closely written, are taken up by the able gentleman, who acted as referee, in giving a mere analysis of the leading facts of these fierce forensic conflicts ; the whole narrative of BENCH AND BAR IN CALIFORNIA. 277 which, unabridged, exceeds by a few pages Sir Walter Scott's account of Napoleon's first campaign in Italy. Fearing, probably, that the litigation might, in some way, be brought to an untimely close in the lifetime of the litigants, the respondents are accused, with some reason, of adopting the economical plan of dividing out the subject into small parcels and suing for this lot by inches. We cannot take time to review this protracted controversy, and to follow its mazes through all its ramifications ; nor is it necessary, for a single point is conclusive. We regret that we have no power to put a stop to this comprehensive and embarassing litigation, and that we must turn a deaf ear to the pathetic appeal of the appellant's counsel, "not to suffer his clients' to be lawed to death;" but, though it is the interest of the republic that there should be an end of litigation, and not less the interest of these parties, yet the rules of law forbid our putting an end to it this way. Judgment was affirmed on the ground that chancery could not interfere in the controversy, until after a trial at law, adjudicating the title — to which trial all claimants must be parties. In his opinion in the case of the City of Oakland vs. Carpentier (13 Cal., 550), in referring to the charter of the town of Oakland (which is to be found in the laws of 1852, page 180), Judge Baldwin said : "The charter is, per- haps, the most defective on the statute book, and this is saying a great deal. A perverse ingenuity seems to have been exercised to make it as ' lame and loose as possible. The joint labors of Malaprop and Partington could scarcely have made such a collocation or dislocation of words and sentences. Among other things, it gives the Board of Trustees power "to license and suppress dramshops, horse-racing, gambling houses, houses of ill-fame, and all indecent and immoral practices, shows and amusements." Further on, quoting from the charter, the Judge styled it "a jumble of incoherent and contradictory verbiage. ' ' This Judge made an apt observation regarding the celebrated case of Archy, the negro slave, who was brought into this State by his master, Charles A. Stovall, of Mississippi, in October, 1857. The slave deserted his master, and was brought before the Supreme Court on habeas corpus, the writ being sued out by Stovall. The Supreme Court — Baldwin was not yet on that bench — decided that Stovall was not entitled to the black man either by constitutional right or on the grounds of comity between the States, because Stovall was neither a traveler nor visitor, he having remained in this State an unusual time, having engaged in business here, and having even hired out his slave. ' 'But, ' ' said Judge Burnett, ' 'there are circumstances connected with this particular case that may exempt him (Stovall) from the operation of the rules we have laid down." These circumstances were com- prised wholly in the fact that this was the first case of the kind that had come before the court. It was a case of "I'll let you do it this time, but look out hereafter." The slave was delivered to his master. The opinion in this case is the most remarkable to be found in the reports. Judge Baldwin said of it : "It gives the law to the North, and the nigger to the South." 278 BENCH AND BAR IN CALIFORNIA. A certain lawyer once told Judge Baldwin a clever joke upon a brother attorney named Balder. He thought it was particularly good and that it would apply to Judge Baldwin as well as Balder, but for the fact that the names were dissimilar. "Don't let that annoy you a minute," said Baldwin, "I will get my name changed by an act of the legislature." Baldwin proposed at one time to write sketches of this Bar. How ad- mirably he would have executed the task ! Francis J. Dunn was in early times a leader of the Northern California bar. He was a brother of a distinguished Illinois judge. A vain, eccentric, dissipated, cross, petulant man was he, rude towards his brother practitioners, and when a judge decided a case against him, he beeame insolent to the bench. Niles Searls, now Chief Justice of our Supreme Court, when County Judge of Nevada county, had the temerity to decide a cause against Dunn, and the latter appealed to the Supreme Court. In his brief Dunn was particularly caustic upon the County Judge. In delivering the opinion of the Supreme Court Baldwin rebuked Dunn severely for the language of his brief. A few weeks later Baldwin and Dunn met in Nevada City. "Baldwin," said Dunn, "I think you were unnecessarily severe upon me in your decision the other day." "Do you think it was decent," asked Baldwin, "to reflect as you did upon the integrity of a judge?" "What did I say?" asked Dunn. "You said this, " said Baldwin, repeating an expression of Dunn's in his brief. "Did I ?" asked Dunn. "Yes, and you put this in," said Baldwin, giving another impolite quotation. "Is that so?" inquired Dunn. "Yes," said Baldwin, "and you put this in," giving another quotation. "Well," said Dunn, drawing in a long breath, "I must have been drunk!" "But you didn't put that in," said Baldwin. Just here I recall one of the many good things that [are told about Dunn. # He was found by some miners once, in midwinter, lying by the roadside between two mountain towns, covered with snow, unconscious and almost frozen to death. Being lifted up, rubbed and brought \to his senses, he was asked: ' 'Who are you ?" ,; I am Francis J. Dunn," he promptly replied, with his] returning breath, "the best mining lawyer in the State of California." BENCH AND BAR IN CALIFORNIA. 279 It was very funny to see Judge Field, his associate on the Supreme Bench, turn upon Baldwin his severe countenance at times. Judge Field, who bore himself with great solemnity, betrayed constant uneasiness lest his witty and brilliant brother should break out into some overt impropriety of sport. And Baldwin would enjoy the sufferings of the Chief Justice all the more. On one occasion the eccentric and crude Skidmore, of Marin county, was arguing a case. He was himself appellant and had been sued in ejectment. Skidmore had interposed an "equitable defence" as he designated it, which was that the land in dispute was, in point of fact, no part of the patented Mexican grant, as alleged by respondent, but that the government surveyor had corruptly run his lines so as to embrace the land in controversy, which was in the occupation of the appellant; and it was charged in the "equitable defense" that the surveyor was paid $1200.00 for this fraudulent survey. In the midst of Skidmore's argument, Judge Baldwin stopped him, and in an attitude of earnest inquiry said: "Let me see if I understand you. You say that the land in controversy never belonged to the respondent and is no part of his original Mexican grant?" "Yes, sir." "And that the surveyor deliberately ran his lines wrongly so as to include this land ?" "Yes, sir," said Skidmore. ' And that respondent paid the surveyor $1 200 for doing this?" "Yes, sir," said the counsel. "Then," continued Baldwin, main- taining his serious air, "Why didn't you pay him $1300 to leave your land out." Skidmore incautiously answered, "I didn't have the money, your honor." "Ah!" then said Baldwin, "there was no lack of diligence on your part." The loud laughter that followed was quickly checked by the frown of the Chief Justice. Baldwin was once badly disturbed by Tod Robinson, father of C. P. Robinson, and once District Judge at Sacramento, and, later, Supreme Court Reporter. Robinson, when he would warm up, was a fine talker. This occasion was also in the Supreme Court, when Baldwin was on the bench. A certain constable given a writ of execution against the property of a defen- dant in a suit, levied on and sold property belonging to a man who was no party to the suit. The latter sued for damages, and instead of suing the constable alone, made the sureties on his official bond co-defendants also. He recovered damages in the District Court against all the defendants and the latter appealed. Robinson appeared in the Supreme Court to uphold the judgment obtained in the District Court. Baldwin interrupted his argument to inquire if the counsel had ever considered the distinction between acts done virtute officii, and acts done colore officii. ' 'It seems to me, ' ' he observed, "there would be as much propriety in joining the constable's 28o BENCH AND BAR IN CALIFORNIA. bondsmen with him, in a suit against him for damages for assault; as much propriety as joining them in this action." With great deliberation, Robinson responded: "Your Honor has announced a principle that I have been contending for all my life." At this there was eager attention to hear more. Robinson proceeded on the correct- ness of the position stated by Baldwin, arguing against himself, and then, suddenly, and with impressiveness in his voice and gesture, he said: "But, Your Honor, there is just one trouble we have — there are just 400 adjudicated cases against us and not one in our favor." Baldwin was cut, but Robinson went on and made further argument in support of the principle stated from the bench, but soon he repeated: "But, your Honor, there is iust one trouble we have. There are just 400 decisions against us, and not a single one in our favor. ' ' He argued for some time further, during which he gave the quoted words frequent iteration. At last Baldwin, interrupting, said, "Well now, Judge Robinson, if you will just repeat that 400 times, we'll be even on the authorities." Judge Baldwin was kind in his wit — remarkably so — but he could resent insolence in fitting terms. He was a most amiable man, but nobody was rude to him twice. The Hon. Edward Stanly married his sister. When Stanly was running for> Governor, he made the usual stumping tour, and one of the burdens of his speech was that he never sought office, but that, he had always been im- portuned to take office, much to his annoyance. In an opposition paper, Baldwin drew a graphic picture of Stanly being chased out of three States and several Territories by people who wanted to run him for office. Baldwin signed this article "Jack Cade." - For several years before his death he lived with his son-in-law Felton, at the latter's residence in Oakland. Unlike Felton, Baldwin cared nothing for the pleasures of the table, except the post-prandial talk. He hardly knew what plates were placed before him. But when the cloth was cleared he was all youth and jollity. It was a genuine treat to sit at the table with Baldwin and Felton. Either one was perennial in wit and in that lore which entertains and charms. . Baldwin died at the age ot forty-nine years. He had been for some time engaged in gathering materials for a history of California, but had not progressed far with his manuscript. He was unusually lively at the dinner table the day before his death. That evening in the midst of animated conversation, he suddenly put both hands to his cheeks and said: "My jaws pain me — they feel stiff. ' ' He had recently undergone a surgical operation and thought he had passed it triumphantly. But he had the lockjaw. The next day he was silent forever. CHAPTER XXI. Davis S. Terry of Stockton— A life Cast Amid Stirring Scenes— In the Texan Army Under Sam Houston— At Monterey Under Taylor — Chief Justice of the Supreme Court — Arrest and Imprisonment bv the Great Vigilance Committee— The I>uel With United States Senator, David C. Broderick— Graphic Narrative of the Historic Encounter By an Eye-Witness— In the Confederate Army^A Command Under Maximilian in Mexico Declined— References to D. W. Ferley, J. Neely Johnson, Henry Edgerton, Volney E, Howard, K. P. Hammond, Samuel H. Brooks, Calhoun Benham, Thomas Hayes, Joseph C. McKibben, David D. Colton and Leonid as Haskell. Whoso attempts to follow this remarkable man through the tempest- vexed voyage of his life will be cast ofttimes between Scylla and Charybdis; and may esteem himself fortunate if he escape the perils of the pursuit. With a purpose to close the ear to the voices of prejudice and passion, and to do exact justice alike to the living and the dead, he may yet set his sail with trepidation. David Smith Terry was born in Todd county, Kentucky, March 8, 1823. His ancestors migrated many generations ago from Ireland and Scotland to the State of Virginia. One of the family, Nat. Terry, was a famous Colonel in the American revolutionary army. He was taken prisoner by the British, and suffered a long and cruel imprisonment in Charleston. Being exchanged, he participated in many important engage- ments, and at the siege of Yorktown. David Smith, Judge Terry's maternal grandfather, after whom he was named, was also a revolutionary hero. He refused to release his father's brother, to whom he was strongly bound by ties of affection, and whom he had taken prisoner at King Mountain. Our friend's father was a cotton planter in Kentucky, and afterward in Mississippi. Removing to Texas before the acquisition of that vast . empire by the United States, he died there, immediately after his arrival, in 1835. The widow died a year later. The following glimpse of David S. Terry's boyhood days is caught from a letter penned to his wife in a painful crisis many years ago. It was published in the Sun of July 2, 1856, and the occasion will appear hereafter: "By the death of my mother, I was left, at the age of thirteen years, to my own guardianship, my only counselor, who had influence with me, being my brother, who was but two years older than myself. From that age I counted myself a man, and associated with men — aye, and played a man's part in the struggle which secured the independence of Texas. 282 BENCH AND BAR IN CALIFORNIA. Acknowledging no control upon my actions, I could not sink from the soldier into the schoolboy; so, what education I have acquired — above what a boy of twelve years gathers at common schools — I acquired by reading at home all the books I owned or could borrow, during the time I was not engaged on the frontier." The adventurous youth served in the Texan army under Sam Houston, taking part in the battle of San Jacinto. When Texan independence had been achieved, he commenced the study of law at Houston, and was there admitted to the bar. When war opened between the United States and Mexico, he was among the first to enlist; he was with Taylor "at Monterey, where we won the day." In 1849 he led a company of Texans across the plains to California, having, en route, two fights with Indians, who killed only one of his men, and who were made to deeply lament having formed his acquaintance. His first pursuit in California was mining in Calaveras county; this he followed for a few months only, and, before the annus mirabilis had passed into history, he was in active law practice at Stockton, where, after the lapse of thirty- eight years, he may be found to-day ! But the interim — how vast ! In 1850 he was defeated for Mayor of Stockton by Samuel Purdy, who afterwards became lieutenant-Governor. In the same year he formed a law partnership with D. W. Perley, which continued until 1855. In the fall of the latter year he was elected, on the Native American ticket, a Justice of the Supreme Court for the short term — four years — Hon. Hugh C. Murray being elected at the same time, by the same party, Supreme Court Justice for the long term — six years. He took his seat on the Supreme Bench in January, 1856. His decisions are reported in volumes five to fourteen, inclusive, of the California Reports. They are terse, logical and generally sound. A strong state's rights opinion of his will be found in the ninth volume — Warner vs. the Steamer Uncle Sam. On the death of Chief Justice Murray, which occurred on September 18, 1857, Judge Terry became Chief Justice. An extraordinary adventure marked the first year of his judicial tenure. It was the year of the great Vigilance Committee. He was an open foe to that organization, and believed it should be suppressed by the military power of the State and nation. Governor J. Neely Johnson, by proclamation, de- clared the city of San Francisco in a state of insurrection, but was over- whelmed by the force of adverse public opinion all through the State. His applications to General Wool and to President Pierce for federal military aid to disperse the Committee were denied. Some state arms had been shipped from Sacramento on a schooner to be used by state troops in San Francisco, but a party of Vigilantes, under J. 1,. Durkee (he still lives) seized the vessel in the strait between San Pablo and San Francisco bays. The Committee, in BENCH AND BAR IN CALIFORNIA. 283 investigating the matter of this shipment of arms, desired to take the evidence of one Reuben Maloney who was believed to know all about it, and who, being a strong enemy of the Committee, refused to attend and testify. It was determined to take him by force, and S. A. Hopkins, Vigilance Ser- geant, and two men, were ordered to that duty. They found Maloney in a room with Judge Terry and a friend. The Judge told them that they should not make the arrest in his presence. Hopkins withdrew with his men, and procured reinforcements. Returning in quest of Maloney, he met him on the street, proceeding to the State Armory, accompanied by Judge Terry and friends, armed with guns. The arrest being resisted, Hopkins seized Judge Terry's gun, and the Judge instantly stabbed him in the neck, inflict- ing a terrible wound. The Judge was promptly overpowered, disarmed, and was incarcerated in "Fort Gunnybags." He was held a close prisoner for seven weeks, and, after undergoing a long trial, during which he took down himself the evidence of witnesses, he was released, owing to the recovery of Hopkins and the prospect of an early voluntary disbandment of the Com- mittee. I have it from a citizen who was prominent in the councils of the Com- mittee, that Judge Terry's life hung upon that of Hopkins. Some urged his execution without regard to Hopkins' fate, and, strange to say, among these radicals was one who has been in responsible official station in this city for a great part of the time since that exciting juncture. It was during this imprisonment that Judge Terry wrote to his wife the letter from which an extract has been given, and from which I desire now to make a further quotation : If I felt guilty of any crime I would not falter, but upon this point I am invulnera- ble. I know that I acted not from any feeling of malice towards any human being, but solely from a regard to a sacred principle — from the .desire to prevent the consumma- tion, in my presence, of an act which, though it may have been attempted from good motives, and would certainly have worked no injury to the community, as the man sought to be removed was a bad man — was, nevertheless, a violation of the constitution of this State, which I had sworn to support, as well as the constitution of the United States, to secure the blessings of which to their posterity both of my grandfathers fought and bled, and toiled and suffered. I was educated to believe that it is the duty of every American to support the con- stitution of this country ; to regard it as a sacred instrument, not to be violated in the least provision ; and, if necessasy, to die in its defense. The meanest criminal is, under that provision, guaranteed the same rights as the noblest citizen, and cannot, without a violation of its provisions, be deprived of his liberty except by legal process. It was at this holy principle, and the obliga- tions of my oath, I looked, and not at the demerits of the man — whom I know to be a bad man ; and I believe even those who are my selfconstituted judges will do me the justice to think I would not defend that man for his own sake. 284 BENCH AND BAR IN CALIFORNIA. While Judge Terry was in confinement, the Texas Legislature adopted a memorial to Congress asking that body to interfere in his behalf. Hon. M. H. McAllister, Judge of the United States Circnit Court refused to issue a writ of habeas corpus for the prisoner, being "unwilling to provoke the animosity of the people." The California Democracy, which up to the year 1859 had always been violently disturbed by faction, in that year split absolutely in two. David C Broderick led the Douglas or anti-Iyecompton wing, while David S. Terry was a warm supporter of the administration of President Buchanan. On the 24th of June, 1859, in a political speech before the Administration State Con- vention at Sacramento, Judge Terry, then Chief Justice of the Supreme Court, alluded to the opposing wing of the party as "a miserable remnant of a faction sailing under false colors, trying to obtain votes under false pre- tences." "They have no distinction," he proceeded; "they are entitled to none. They are the followers of one man — the personal chattels of a single individual whom they are ashamed of. They belong, body and soul, to David C. Broderick. They are yet ashamed to acknowledge % their master, and are calling themselves, forsooth, Douglas Democrats," etc. The words quoted gave offense to Broderick, who, when he read them the next morning at the breakfast table of his hotel in San Francisco, re marked that he "had considered and spoken of Judge Terry as the only hon- est man on the Supreme bench, but he took it back." This was said in angry tones addressed to a friend sitting by him, but was heard by D. W. Perley, Judge Terry's former law partner, who was at the table, and who, after informing Broderick that he would call him to account for the words used, left the room. The same day Perley sent a hostile note to the Senator, who replied, somewhat oddly, that ' 'he could not, at the present time, afford to descend to a violation of the constitution and the state laws. ' ' He said further, "If compelled to accept a challenge, it could only be with a gentle- man holding a position equally elevated and responsible ; and there are no circumstances which could induce me even to do this during the pendency of the present canvass." On the day after the election, Judge Terry resigned his seat on the Supreme bench, repaired to San Francisco, and sent a note to Broderick, de- manding a retraction of the words given above. Broderick asked that he set forth the language objected to. This was done. Broderick then wrote the words as he remembered them, but substantially as he had been reported, made no retraction, and added that Judge Terry could decide whether the language was offensive. Judge Terry thereupon sent through Colonel Calhoun Benham, a premptory call to the "field of honor." It was accepted, the duel was fought, Broderick was mortally wounded at the first fire and died three BENCH AND BAR IN CALIFORNIA. 285 days later, and his death opened a mighty gulf of hate between Northern and Southern men in California. Judge T. H. Rearden, in a sketch of Broderick, written for my book, "Representative Men," 1870, observed : "The train of events which seemed to make the death of the Senator the irresistible necessity of the tragedy, pointed to Dr. Gwin rather than to Judge Terry, as his veritable opponent. It was not on the same plane with Terry that Broderick's acts were projected. The offense rankling between them was an episode rather than the absorbing emotion, and the frightful unities of the drama would seem to have been better met, had Gwin rather than Terry pointed the pistol that finished the career of our hero. ' ' As twenty-eight years have elapsed since the famous duel occurred, and as our State numbers among its population many thousands of intelligent young people, even voters, who were not then born, it will be appropriate to give an account of the meeting, and I can do no better than use that which appeared in a city paper at the time, a graphic and dispassionate statement by an enlightened and sharp sighted eyewitness. It will follow this sketch. In the narrative it is denied that Judge Terry made a loud remark as Broderick fell. It was widely reported that he said: "The shot is not mortal ; I have struck two inches too far to the right. ' ' A remark was also by somebody gratuitously put on Broderick's dying lips, universally believed and circulated all over the country — this: "They have killed me because I was opposed to the extension of slavery and a corrupt administration. ' ' Our historian, Hittell, declares that the fallen man said nothing of the kind. In 1862, Judge Terry went to the Southern States, passing through Mexico, and joined the Confederate army. After serving awhile on the staff of Gen. Bragg, he organized a regiment in Texas, which he commanded in several battles. At the close of the war he commanded a brigade, a separate command. He was rigid in discipline, and severely punished raiding. An officer sent to inspect the condition of the troops in his department eulogized Terry's discipline. A brother of Judge Terry's, Colonel Terry, of the Texas Rangers, was killed at Green river. When the war closed he went to Mexico. Maximilian offered him a high military command, which he declined, and devoted himself to cotton raising for two years, but with no success. Then, in 1869, he returned to California. After a short stay at White Pine, Nevada, he settled down, in 1870, in his old town, Stockton, where he has since continuously resided. He was a member of the last Constitutional Convention, serving as chairman of the Committee on the Legislative Department, and as a member of the Committee on Judiciary. He was author of the clause declaring the responsibility of bank directors to depositors. He took the stump in support , of the new constitution; declined a nomination for Supreme Judge on the 286 BENCH AND BAR IN CALIFORNIA. ticket of the New Constitution party. He was a candidate for presidential elector on the Democratic ticket in 1880, and was the only nominee on that ticket defeated, the vote being close, and he falling behind, owing, it is supposed, to his name being scratched by old friends of Broderick. He asks for nothing, but freely contributes time and money to his party. He has generally been fully occupied with professional duties, and has now a large practice in the counties of San Joaquin, Merced, Stanislaus, Fresno, Tulare and Kern. He was employed in all the extensive litigation affecting water rights in Fresno and Tulare. He is the principal counsel for the defense in capital cases through the six counties named. The case of young Granice, convicted of murder in the second degree, in killing Madden, in Merced county, will be remembered. Madden was editor of the Express. Granice was twice convicted and was in the State Prison, under a sentence of thirty years, when Judge Terry secured his freedom on a technicality. The prisoner was indicted for manslaughter, and being convicted, the Supreme Court granted him a new trial. Again placed upon trial on the same indict- ment, and the evidence being all in, the District Attorney, in conformity to the Code, moved that the jury be discharged and the prisoner remanded, to await indictment for a higher crime, the testimony going to show that the charge should be murder. This was done. The prisoner was afterwards indicted for murder, and was convicted of murder in the second degree, and sentenced as stated. The Supreme Court held that the discharge of the iury was equivalent to an acquittal. The prominent lines of Judge Terry's character are unmistakable and well known to a broad acquaintance. He has great aggressiveness and undaunted firmness of purpose. He never quails, even before a raking fire. A man of strong friendships, it quite naturally follows that he has also strong prejudices; but he is easily placated, and in the path of mercy a little child could lead him. He is generous. His nephew and partner, who was long an inmate of his home, and who has given me a glimpse of his private life, speaks of him in terms of tenderness. His political foeman, Henry Edgerton, stated to me his belief that it would be an impossibility for David S. Terry to do an act of dishonor. His charities have been many but never ostentatious; in this respect his left hand has not known what his right hand has done. He is very impressive and effective before juries, but in his addresses in the courtroom, as elsewhere, as, also in conversation, he never attempts ornament, but rather disdains it. His speech is plain, but uttered with the force of frankness, the eloquence of a chaste simplicity, and the precision that is the birthright of a masculine intellect. False pride, shuffling and cant he opposes with the full impulse and momentum of his nature. He is of giant physical stature. Standing six feet three inches in height, with Atlantean shoulders and sinews, a weight of 225 pounds, finely BENCH AND BAR IN CALIFORNIA. 287 preserved, and looking ten years younger than his real years, Nature seems to stand up and point to him, "and say to all the world, This is a man!" The Judge married, in 1852, Miss Cornelia Runnels, a niece of Hiram Runnels, an early Governor of Mississippi, who was a warm adherent of Andrew Jackson. (Runnels once fought a duel with Volney E. Howard, who afterwards became a resident of Iyos Angeles. General Howard's life was saved by a buckle on his suspender, which turned his adversary's bullet.) The lady just named was one of the most remarkable women this country has produced. Her fortitude in the face of inconstant fortune often ■evoked the applause of her husband's foes. Circumstances making it im- practicable for her to accompany him when he drew his sword for the "lost •cause," she followed on a steamer to San Bias, and thence pushed on over- land through Mexico to Texas. Twice on the way she was robbed by bandits, but each time the robbers were apprehended by Mexican officers, and her property was restored to her. On the journey her infant babe died, and she carried it for two days on horseback before she found a spot to give it Christian sepulture. She joined her husband in Texas, and, with the exception of this brief separation, was his constant companion through all the vicissitudes of his eventful life, until her death a few years ago. A son of our subject, who had attained considerable reputation at the bar, died at Stockton, April 1, 1885, while still a young man. He had been a member of the legislature, District Attorney of his county, and Grand Chancellor of the Knights of Pythias. On January 7, 1886, at Stockton, Judge Terry married again, the lady being the plaintiff in the celebrated case of Sharon vs. Sharon, in which he had been her counsel. She had won her case in the Superior Court, and it was pending on appeal, but Mr. Sharon had died on November 13, 1885. I now give the narrative alluded to, of the great duel. A few sentences •of explanation, in parentheses, are my own: THE BRODERICK-TERRY DUEL. San Francisco, Sept. 14, 1859. Mr. Editor : I accept the medium (kindly offered) which your columns afford, to place on record a clear, comprehensible and unadorned statement of the late unfortunate "meeting" between the Hon. David C. Broderick and Chief Justice Terry. I will premise that I was on the ground as a spectator. I knew nothing of the preliminaries, and was so ignorant in this respect, that up to the moment the adversaries took position on the field I was unaware of the distance determined upon, and was impressed that the principals were to wheel and fire. With this exordium I presume your readers will perfectly understand that my statement is one of fact, given under the conviction that I am performing a high and solemn duty. At six o'clock (on the morning of September 13, 1859), a large party of gentlemen 288 BENCH AND BAR IN CALIFORNIA. in buggies and other conveyancer, arrived near Mr. Davis' ranch, about one mile and a half to the south of the southernmost extremity of Lake Merced. At this point, all having indefinite notions of the place of meeting, they were met by a carriage returning, containing two partisans of Mr. Terry, who seemed to have been searching unsuccessfully for the rendezvous, and to have given it up. The whole procession was about to return to town, when Dr. Hammond (Dr. William Hammond) in a gig, was seen to approach in the direction in which we had come. Knowing that the doctor was one of Mr. Terry's physicians, we felt satisfied that the place of meeting could not be far distant. We determined to follow the doctor, and therefore all wheeled conveyances. The doctor hesitated when he saw that he was acting as cicerone for a procession of duel-ground hunters, and I descended from my wagon to approach him, under the misapprehension that the doctor was Major Hammond, former Collector of the Port, (now, and ever since A. D. 1878, President of the San Francisco Board of Police Commissioners). The close resemblance of the brothers will make Has, faux pas excusable. In order to pass off the mistake with a nourish, I approached the retiring parties and made some seasonable inquiry. The malignant feeling of some men against Mr. Broderick can be imagined, when, during the conversation, one of the two occupants of the coach expressed a wish that he would be carried from the field a corpse. Of course, so diabolical a hope, given in uncouth terms, could only emanate from a source lost to all virtuous feeling or manly consideration. The doctor proceeded, and the crowd followed. In a few minutes we arrived at Davis' ranch, where our leader stopped. The whole procession hitched up their animals, and I approached the bluff ranchero, who was feeding his cattle, in order to gain some information. In answer to my inquiries, he said that no carriages had passed his house during the morning except the one we had overhauled. At this moment a very curious conver- sation took place between Mr. Davis — who was dressed in a cotton blouse and equipped with a large sized pitchfork — and an individual who had evidently driven all night in search of the field. ' 'Have you any whiskey in your house ?' ' inquired the newcomer. "I have not," answered the ranchero. "It might be serviceable on this occasion," said the other. "Whiskey is only serviceable or of use on proper occasions; this is not one, and therefore, if I had it, I would not produce it." About this time several vehicles came flying through the pass, and stopped at a place some distance beyond where we were. I soon became satisfied that these men were the important ones of the occasion. Mr. McKibben, (Joseph C. McKibben, ex-Member of Congress— see page 15) ex-Sheriff Colton, (David D. Colton, father-in-law of Mr. Crittenden Thornton, and since deceasedl, Senator Broderick and one or two personal friends descended from their vehicles. Judge Terry, who was accompanied by Calhoun Benham and Colonel Thomas Hayes, of San Francisco, as seconds, S. H. Brooks, State Controller-elect, as field counselor (now United States Treasurer at San Francisco) and Dr. Aylette as surgeon and general adviser — for the doctor is said to be a most experienced duelist — thereupon arrived, and all jumped from their conveyances. The field, the entrance to which is a few hundred yards south of Davis' house, was entered through a gap between two hills. A fence had to be jumped before reaching the grounds. The dell where the duel was fought was surrounded by hills and undulating ground. Egress can be had from it — as far as I noticed — only by two level outlets, viz: through the opening leading to Davis' ranch, and directly south from the ground itself, up a gulch. How far this gulch runs I know not, but it appears to me to connect with BENCH AND BAR IN CALIFORNIA. 289 a ravine encircling the easternmost hill, forming the amphitheater where the tragedy was enacted. Immediately upon the arrival of both principals and their seconds, which was almost instantaneous, Mr.. Broderick proceeded up the gap and occupied his side of the field. Mr. Terry and his friends did the same. The armorer, with the cases of pistols, took position at the northern point of a triangle formed by Broderick on the east, Terry on the west and the armorer on the north. The empocketed plain in which the affair occurred permitted of about sufficient level ground for the requirements of the occasion. When all hands arrived on the ground, I counted (not a particular count) seventy one men, including principals, present. Mr. Terry's seconds and advisers were constantly with him. I noticed particularly that when Benham and Aylette were attending to "outside" matters, Brooks kept close to his friend, and conversed with him in a. lively tone. On the other hand, Mr. Broderick seemed to be absorbed with matters discon- nected with the issue, and was talking earnestly with Mr. Haskell, (Leonidas Haskell, a 1 wool dealer, and politician of influence, in whose dwelling at Black Point, Broderick died), and a gentleman whose name I am unacquainted with. During this time Mr. Broderick was cool and selfpossessed. His antagonist seemed agitated, and measured the ground in his direction with an uneasy and anxious tread. The seconds approached the armorer, examined the weapons, turned several times, and pointed to the white marks that had been placed on the field to establish the distances. Mr. McKibben, in examining the pistols, snapped a cap, with an air of satisfaction. He seemed to look as if the pistol suited him. Some conversation was had. Mr. Benham (or Aylette, I am not certain which) approached Terry, said something to him, in reply to which Terry seemed to smile, and became more calm than before. As the affair was approaching the* crisis, every eye was turned on the combatants. Mr. Broderick's friends held a short and earnest conversation, and retired. Mr. Brooks did the same with Mr. Terry, and moved to one side. An official expression notified the combatants to take their respective positions. The distance was marked white, and appeared to an observer murderously close. In fact, more than one man present uttered the ejaculation that it was downright murder to allow men to shoot at each other at so short a distance. The principals, however, took their positions. Mr. Broderick divested himself first of a dark brown paletot, and cast his eye along the grcund separating him Irom Mr. Terry. At this moment I took pains to closely scan the countenances of both combatants. Mr. Terry's lips were compressed, his countenance darkly sallow, and his whole appear- ance betrayed that of a man without fear, as well as without religious constraint. Wan and attenuated, he stood a stolid monument on the field of strife. Mr. Broderick could not have been distinguished by the stranger as a principal. With his hands folded behind him he held earnest conversation with Mr. Haskell. He would occasionally turn, scan the crowd and rest his eye upon some recognized countenance. The muscles of his face were strong, and his visage unrelaxed in every particular. His lips, when not conversing, were compressed, and his whole bearing was that of a man who was about to meet a great issue, and who was firmly prepared for it. Having digressed somewhat, in order to give my readers a full account of what occurred, I return to the principals and their seconds at the point where I left them. Messrs. Broderick and Terry, being divested of their overcoats, were told by Mr. Benham to take their positions. The seconds then arranged about the weapons — how this was done is unknown to others — and Mr. Benham, taking a pistol, proceeded to Judge Terry, and placed it in his hand. The latter took the pistol in his left hand, passed it behind him, connected both hands, stood for a moment in that position, and 20,0 BENCH AND BAR IN CALIFORNIA. then rested his weapon on his left hand in front. Mr. Broderick, on being handed his pistol, anxiously examined it, and at intervals measured with his eye the ground between himself and his adversary. He seemed to take much pains in examining the pistol. At length he braced himself up and took his position. A frock coat which he wore seemed to trouble him somewhat, and he endeavored more than once to bring the front tails closer together. Had a pin been offered him at this moment, I believe he would have used it. Terry, in the meantime, with the barrel of his weapon resting on his left arm, held his eyes fixed on the figure of his antagonist. Before the word was given, Mr. Benham approached Senator Broderick, who had handed his watch, money, etc., to Mr. McKibben, and felt his clothes, and examined with his hands the body of the principal. A nod of satisfaction showed that he had found nothing concealed beneath his vestments. Mr. McKibben then went towards Judge Terry. The latter handed to his second, Mr. Benham, a watch, pocket articles and a quantity of money. Mr. Benham received the watch, but the money, with a flourish, he scattered over the ground. Mr. McKibben then examined the person of Judge Terry, expressed himself satisfied, and took position to the right of Mr. Broderick, and immediately opposite Mr. Colton. The seconds of Judge Terry occupied similar positions, with Mr. Benham on a line with Mr. McKibben, and Mr. Hayes on a line with Mr. Colton — all the parties forming a sexangle. i The parties thus placed were left for about five seconds; Mr. Broderick, in the meantime, as before stated, examining his weapon. Mr. Benham produced a number of papers and read from one the conditions of the duel. The word fell to Mr. Colton, Broderick's second. He advised the parties, with an example, how he should call it. He said: "Gentlemen, I will give the word as follows: Gentlemen, are you ready? When both have answered ready, I will say, fire, one, two, with a pause between each word." Mr. Benham, for the benefit of his principal, repeated the word. The arrangement seemed to be perfectly understood, and all parties assumed their positions; Mr. McKibben uncovering his head. We have before said that Mr. Broderick seemed to know the importance of the issue, and seemed nerved to meet it. Up to the time the pistol was handed him he appeared the cooler and more collected of the two. But after examining the pistol he seemed to become uneasy. He betrayed nothing like lack of courage; but in measuring the stock - of his pistol with the conformation of his hand, he presented to the observer an unsatis- fied appearance. This was shown by more than one movement. His right leg — the fore one — sank below a bracing attitude, seeming as if he was fighting on downhill ground. It was the general expression of all within my hearing that Mr. Broderick's position, either from his constitutional nervousness, or from a want of confidence in the equality of the chances between the two combatants, was unfavorable to his success. All agreed that his personal bravery was patent. There was no weakening; but there was an anxious solicitude in his deportment that placed him at great disadvantage. At precisely fifteen minutes to seven o'clock, as the sun was endeavoring to force his smiling beams through a succession of clouds that were passing south over the head of Mr. Broderick — the solemn moment on which all were satisfied a life depended Mr. Benham gave a rapid glance to the sky, detected something to the disadvantage of his principal, and approached the latter, who wore a large, rather stiff-brimmed wool hat and had drawn the front of it over his eyes. After Judge Terry's second had caught his eye, the front was turned up. Mr. Colton then, in a clear and distinct voice, called out the word. He made considerable pause between each announcement — a pause that can be compared to the time elapsing between the strokes of the cathedral clock bell, perhaps not so great. When Mr. Colton asked; "Gentlemen are you ready?" Mr. Terry instantly replied BENCH AND BAR IN CALIFORNIA. 291 'Ready," without moving or relaxing a muscle. Mr. Broderick, however, as I said before, spent several seconds in examining the stock of his pistol, which did not seem to fit his hand. When, at length, he answered "Ready," he did so with a gesture, nodding his head and inclining his body towards Mr. Col ton. Between the words "Fire ! — one ! two," both parties shot. Mr. Broderick fired first, and at about the last enunciation required to convey the word "one." Mr. Terry shot in a space of time afterwards which it would require in music for a quaver. The word "two" was scarcely started upon when the Judge fired. Mr. Broderick's shot was spent in the ground some four or five yards in advance of him. Judge Terry's took effect in Broderick's right breast, above the nipple. Immediately upon receiving his antagonist's fire, Mr. Broderick raised his right arm still grasping the pistol. It was the impression that he had been shot in the shoulder. His arm was contracted, and he made a spasmodic effort to brace himself up. The leaden messenger, however, had gone to a more sensitive and vital spot. After endeav- oring to summon the will to resist the pressure that was bearing him down, the head dropped in a recumbent position over the right shoulder, the knees bent outwardly, and at length, gently and calmly as a child retiring to rest, he eased to the earth, pressing his right breast with the hand still holding the pistol, and lying on his left side. Judge Terry, in the meantime, maintained his position, keeping his eye constantly in the direction of the fallen man. In a few moments he was told that his antagonist could not rise, and he thereupon left the field. It has been said he made a loud remark when Broderick fell. He did not. Whatever he said to his second was not heard by the spectators. I now close this extended and detailed account. I give it as a statement of facts, in the order in which I saw them, hoping that I might thereby correct erroneous impressions, and give all an opportunity of judging, from the events that occurred . CHAPTER XXII. Elislia W. McKinstry, D. M. Delmas and Others— Judge McKinstry's Loner Period on the Supreme Bench— An Estimate of Him as a Judge, By Henry H. Beld.— The Splendid Career of Mr. Delmas— Notices of William J. Shaw, Henry H. Beid, Lansing B.Mizner, George K. B. Hayes, William M. Pierson, T. C. Van Ness, Judge James V. Coffey, Joseph W. Winans, Hon. William M. Stewart, T. E. K- Cormac, August Comte, Joseph M. Nougues, John Garber, Harry I. Thornton, Thomas B. Bishop, John C. Hall, Arthur Bodgers and Eugene N. Deuprey— A Story of Horace W. Carpentier. It is a commanding name that crowns this final chapter, and there are judicious observers who will say it is a case of putting the first last. Be it so or not, it is only chance that has reserved ultimate place to so eminent a man, and to ,one or two of those whose names will follow close upon his. Not surer in his grasp of legal principles than Field, or Baldwin, or Murray, (the Bar probably places him next to these) he yet fills a larger place in our judicial history. His period on the Supreme bench has been continuous since January, 1874, and has now about doubled that of any other man. His has been the voice of the Court in the adjudication of the greatest causes, those which have involved the largest pecuniary interests, and those which have enlisted the passions of the people, notable among which are the local option case of 1874, the Kearney habeas corpus of 1878, and the water rights case of 1886. So, by reason of length of service and enduring work, Elisha W. McKinstry has made a name that will probably live longest of all thus far inscribed on the shining roll of our Judiciary. This gentleman was a District Judge in 1852! It was in the district, under our first system, comprising Solano and contiguous counties. Before that, being a California pioneer, he was in our first legislature, representing Sacramento in the lower branch, P. B. Cornwall being one of his eight col- leagues . By the next succeeding legislature he was elected Adjutant Gen- eral at the age of 24 years, Thomas B. Van Buren nominating him in the Senate and Jesse D. Carr in the Assembly. He left this office to go on the bench. At the end of his term as District Judge he was re-elected, in September, 1858. He went to Washoe in the flush times, and in 1864, he and John R. McConnell and W. C. Wallace (not W. T.) were the Democratic nominees for Supreme Justices of the State of Nevada, all being defeated. Return- ing to California, and locating at San Francisco, he was, in October, 1867, elected by the Democracy, County Judge for a term of four years from January 1, BENCH AND BAR IN CALIFORNIA. 293 1868. In October, 1869, he was elected Judge of the Twelfth District Court, as an Independent candidate, over the regular Democratic nominee, R. R. Provines. In 1873, again as an Independent candidate, he was elected a Justice of the Supreme Court, over Samuel B. McKee, Democrat, and Samuel H. Dwindle, Republican. On September 3, 1879, under the new constitution, which, among many other things, re-organized the Supreme Court, he was re-elected a Justice of that tribunal, and under the classification ' by lot, which the constitution directed, he and Hon. J. D. Thornton drew the longest terms, eleven years each. Judge McKinstry was born in Detroit, Michigan, and is, in 1888, sixty- two years of age. The following estimate of him as a judge, I drew from a lawyer admirably qualified to speak on the subject, Mr. Henry H. Reid of San Francisco : I consider Judge McKinstry one of the best judges that have sat in our Supreme Court — and I do not forget Field or Baldwin in saying this. He possesses a wide and exact knowledge of the law — its history and its great principles. In addition to his familiarity with legal rules and precedents, he has the tact and instincts of the scholar. Hence, the aptness of his illustrations, drawn from his store of historical information and literary acquirement. In the consideration of a case presenting important and difficult questions of law, enveloped in a mass of complicated and confused statements of facts, he brings to his task a mind capable of grasping it as a whole, of resolving it into its essential elements, of stating the real questions presented and demanding to be decided, and then applying the true legal principles to their elucidation. He has a keen perception of the ludicrous, — loves a good joke even on the bench, if it be timely and apt. At the same time he appreciates the necessity for preserving dignity and decorum in judicial proceedings. Satire is a weapon of which he is master. Instance, his opinion in Houghton vs. Austin, 47 Cal., (pp. 669-71) denying the petition for rehearing filed by Creed Haymond. (Read in the light of Haymond's subsequent history, the opinion becomes doubly interesting). His statement of the law and his reasoning throughout, in Ex Parte Kearney, which excited much angry comment at the time (even from some who ought to have known better, e. g. Delos Lake) I regard as wholly admirable. In Ex Parte Wall, 48 Cal., 279, the great local option case of 1874, is a most able exposition of the law, as to when a legislative enactment shall be deemed void, as attempting to delegate legislative power, or as valid because merely postponing the time of its taking effect, that is, to the happening of a contemplated event. In the one case, the legislature has decided upon the expediency of the law for itself ; in the other, it attempts to delegate the power and shift the responsibility to others. In the People vs. Hibernia Savings and Loan Society, his opinion is a model of clear statement, and his conclusions are as unanswerable as a mathematical demonstration. Of his opinion in the great case of Lux vs. Haggin, the questions involved in it being of the most vital importance, and argued by some of the ablest lawyers of the State, two or three times over it is praise enough of its learning and the powers of perspicuous statement and lucid exposition which it displays, to say that it is worthy of a place beside Judge Baldwin's famous opinion in Hart vs. Burnett, 15 Cal., 607. In the petition for rehearing filed by Garber, Thornton and Bishop, in Lux vs. Haggin, (after the second decision of the Court being delivered by McKinstry), it is said: 294 BENCH AND BAR IN CALIFORNIA. "The elaborate and exhaustive opinion of Mr. Justice McKinstry, concurred in by the majority of the court, whether it shall stand as the final judgment in the cause or not, certainly constitutes a contribution of inestimable value to the discussion of the important questions involved in the controversy. It is the most elaborate presentation of the arguments in favor of the prevalence of the common law doctrine of riparian rights in California which has yet been made, or which will probably ever be made.' Senator Matt. H. Carpenter, who stood in the front rank of lawyers of nationa. reputation, and who knew whereof he spake, said of the judicial opinions of Chief Justice Gibson, of Pennsylvania, that to read and thoroughly understand them, would make of the student a profound lawyer. So, we may say, that he who reads and masters the opinions of Justice McKinstry, will acquire a knowledge of the law of the State of California as it exists to-day, and of the history of its growth and development, which is now unfortunately too seldom possessed by the members of our bar. I turn from a great magistrate to a great advocate. D. M. Delmas was born in France, of French parents, April 14, 1844. It is pleasant to state his nativity and ancestry, because our old ally has been very chary in her contributions to the American bar, contrasting strik- ingly, in this respect, with her neighbor across the channel. In Mr. Delmas, born in the land of Aguesseau, is presented a revival of that great advocate. He is a giant in every department of legal practice. His father, Antoine Delmas, came to California in 1849, settling in San Jose, where he still lives. The son, who had arrived in the latter part of the year 1854, entered, four years later, Santa Clara College, an institution which is among the best treasures of the State, and in which many of our most honored citizens have been educated. Mr. Delmas graduated in 1863, receiving the degree of Master of Arts, with the highest honors of the college. He graduated from the Daw Department of Yale College in 1865, and in September of that year was admitted to the bar of the Supreme Court of Connecticut, returning shortly thereafter to San Jose. In February, 1866, he was admitted to the Supreme Court bar in this State, and, in May of that year, opened an office in San Jose with Hon. B. D. Murphy, who has since been Mayor of San Jose and State Senator from Santa Clara county. The partnership, though the realization of a boyhood dream, formed during the college life of these two gentlemen while in Santa Clara, was little more than a nominal associa- tion. Mr. Murphy, being possessed of an independent fortune, never entered upon the discharge of the active duties of a lawyer. Of these early days at the bar Mr. Delmas thus expressed himself to a friend some years ago: "When I commenced the practice of the law my path was by no means strewn with roses, prom my father I had received a pretty fair education, and I determined that the tax upon him should cease when I entered upon the practice of my profession. I left home, in May, 1866, with just two double eagles in my purse, and in my heart the deter- mination that thenceforth I would be dependent upon none but my own resources. That resolution I have adhered to, but it would be idle to deny that I did so at the cost of many hours and days of suffering. Too young, inexperienced and unknown to command a retainer in important cases; too proud (a foolish pride, perhaps) to commence with the BENCH AND BAR IN CALIFORNIA. 295 gratuitous defense of paltry criminals, I -was soon brought to the end of my scanty store of money and to the melancholy contemplation of a bottom of a purse unreplenished by the fruit of my labors. To keep from actual want, I taught school for six months in the winter of 1866. In 1867, a committee of citizens invited me to deliver the address on the Fourth of July. With this invitation came the dawn of better days. The address was delivered. It was warmly applauded. It secured me, a few days afterwards, the nomi- nation for the office of District Attorney at the hands of the Democratic County Conven- tion. I was elected. The office, in those days, was a very lucrative one; besides, it brought me in contact, in one way or another, with nearly every man of mark in the county. From that time on, I certainly have had no right to complain of the frowns of our great mistress, the Law." No lawyer in this State possesses broader knowledge or is a greater master of his profession than he. As an advocate he is the admiration of the bar itself. His remarkably clear vision, his subtle intellect, his piercing judgment, his power of statement, have been applauded by the veterans of the profession. Before a jury he is argumentative or pathetic, as the occa- sion demands. Unlike some other advocates of brilliant parts, he keeps in mind the fact that ' 'the jury are sworn to make a true deliverance, and to address their passions alone is equivalent to asking them to violate their oaths. ' ' Mr. Delmas is very painstaking in the preparation of causes and very skillful in their management — assiduous, tenacious. He has great capacity for applying himself to his subject. In the matter of evidence, his method is noticeable. His system is to make himself, before the case is answered "ready," accurately, mathematically if possible, master of all the facts of the controversy, and, especially, of those which are favorable to his adversary. Upon the trial, he takes full notes of everything that is said or done. It is an article of faith with him to state evidence to the jury with absolute accuracy; and he almost invariably prefaces this argument with a courteous invitation to his adversary not to hesitate to interrupt and correct him in case he should inadvertently fall into an error. It is certainly note- worthy, that, although English is an acquired tongue, and he was a perfect stranger to it for the first ten years of his life, he speaks it better than any other lawyer in the State. Judge Archer of San Jose, having said to me that the eloquent Edgerton, whenever he had an opportunity to hear Mr. Delmas argue a case, would always embrace it, iust to listen to this great advocate's elegant and exact diction, I afterwards received conformation of this statement from Mr. Edgerton in person. Mr. Delmas has long been a regent of the University of California. He was President of the Day on the occasion of the inauguration of Hon. Horace Davis as President of the University, March 23, 1888, and delivered the address of welcome. Mr. Delmas is a son-in-law of Col. Joseph P. Hoge. He removed to San Francisco in 1882, taking his large law library with him, the most 2o6 BENCH AND BAR IN CALIFORNIA. valuable in the State, excepting two or three already possessed in that city. In addition to extended professional fame, an ample fortune has rewarded his industrious and honorable life. He owns among other possessions a fine residence in the town of Santa Clara, surrounded with attractive grdunds, and a noble building in San Jose named Paul Block in honor of one of his sons. I am about to rest from my work. Others would have done it better, but they, too, must have left it incomplete. The theme is expansive. Bennett and Casserly, Cook and Yale, Cadwalader and McDougale, Coffroth and Latham, Sanderson and McConneel, what a chain of bril- liants their names present ! They are all gone, while Hoffman and Ctjrrey, and Wallace are still achieving ! Every name tells of a history that has invested our bar annals with exceeding interest. It is a lengthening roll. Joseph W. Winans ! The death of this leader on March 31, 1887, closed an unbroken career, at the bar of this State, of thirty -seven years. Coming to California in 1849, from New York City, (where he was born July 18, 1820) he established himself at Sacramento. There his plastic hand did much to shape the local government in its various departments. In association with John G. Hyer (Winans & Hyer) he held the principal law practice which centered at the capital before the great flood. Removing to San Francisco in 1862, he formed the law partnership with D. P. Belknap which continued uninterruptedly to his death. His life, remarkable for usefulness and honor, and eminently successful from all points of view, was full of profit to others, its deep, broad and fertilizing current rolling like some ' 'exulting and abounding river, making its waves a blessing as they flow. ' ' In him the judicious patron and critic of art, and the well-informed man of letters, genial in his companionship, and delightful in his conversation, stood forth commandingly; yet were they comprehended in the larger stature of the lawyer, who loved his profession first and held it as a great, continuous trust. The soaring soul was controlled by a purpose true. There is William J. Shaw, a most interesting man, with a most inter- esting history. He has been so long in voluntary retirement that his very name is unknown, perhaps, to more than a few of the army of young men who have passed from the Hastings Law College to the practice of the pro- fession which Mr. Shaw so signally adorned. An allusion of mine to him as belonging to the bar of California drew from him the statement that "he had not taken a fee, nor offered to, in the last twenty-six or seven years." This was in October, 1886. "It is only, perhaps," he continued, "on the doctrine of semel abbas, semper abbas, that I may be classed as a member of the bar of California." BENCH AND BAR IN CALIFORNIA. 297 Mr. Shaw is a California pioneer, a bachelor, and has been in the enjoy- ment of a large fortune as long as any one can remember. He is a square man, sensible and charitable, and well thought of by all who know him. He was a Democratic State Senator from San Francisco, away back in 1856 and 1857, when they had annual sessions and two-year terms ; and again in the biennial sessions of 1 867-' 68 and 1869-' 70. In the legislature he always had important chairmanships, was remarkably indus- trious, and his work was wise. He voted for Gwin and Broderick when the [two rivals were elected United States Senators in 1857. A few days after that unlooked for con- summation, the senate was compelled to adjourn for a day or two on account' of a majority of its members repairing to San Francisco to attend receptions of the elect, but Mr. Shaw was one of those who remained at his post. He was author of the resolutions passed at the great anti-bulkhead mass meeting in San Francisco, in i860. Mr. Shaw is a deep thinker, possesses broad culture and has traveled ex- tensively abroad. Now and then he used to give his reflections to the people in a speech or lecture. His latest public appearance, I believe, was as the Orator of the Day, at the annual celebration of the Pioneers, in 1876. There is Henry H. Reid, born at Babylon, N, Y., March 14, 1845, a farmer's son, of Scotch-English lineage. He graduated from Columbia Col- lege I,aw School in 1868. After a short practice in New York City, he re- moved, in the fall of 187 1, to Norfolk, Virginia, where he soon won a firm place in the esteem of the people and secured a valuable clientage. He quickly stepped into the front rank of the Norfolk bar, while, apart from the profession, his scholarship and address made him the soul of literary and social circles. It was in 1873 that he commenced practice at the San Fran- cisco bar, and he has since followed it there continuously. Mr. Reid has the impulses and intuition of the true lawyer. His percep- tion is fine, his grasp of mind broad and firm, and his analysis thorough. An unassuming gentleman, he yet has great professional pride, which is closely related to his high sense of personal honor and his superior legal attainments. It is the pride of the master. His examination of a difficult law question leads inevitably to its elucidation. His memory is true, he has remarkable power of statement and illustration, and rare perspicacity ; is per- sistent in inquiry, and confused heaps of facts unfold into system and har- mony before his searching and patient survey. Albeit his temperament is one of reserve, his breadth of knowledge and his poise of judgment have challenged the attention of the bench and of the profession generally. A mere lawyer is only half a man, says high authority. Mr. Reid is not a lawyer merely. His mind has many sides. He has a rich fund of gen- eral knowledge. Since early boyhood he has been a great reader and close 298 BENCH AND BAR IN CALIFORNIA. student. His conversation snows his familiarity with the best writers of every era, revealing, also, the well-informed man — wise in thought, full of happy suggestion, and of ever-present wit. "Reading maketh a full man," said Bacon ; "conference a ready man, and writing an exact man. Histories make men wise; poets, witty; the math- ematics, subtle ; natural philosophy, deep ; morals, grave ; logic and rhet- oric, able to contend." In Mr. Reid these effects all stand out prominently, yet he never airs his learning. To the mediocre and commonplace he is indul- gent. He will even let a driveler button-hole him, and in learned company where he is primus inter pares, he wears with exceptional modesty the honors which come to him at "the feast of reason and the flow of soul." Mr. Reid indulged his literary taste to a limited extent in New York and Norfolk, contributing to the columns of leading journals ; but in California, while still pursuing a wide range of reading, he has seldom turned his pen to themes other than the law. However in my book, "California Anthology," f_i88o,J are selections from his writings here, one being a tribute to the ver- satile genius of Oliver Wendell Holmes. In person Mr. Reid is of large and compact build, and of striking per- sonal appearance. As his mental stature is imposing, so he is a strong man physically, and while of gentle disposition and temperate habits, is full of grit and stands by his convictions. Mr. Reid is a man of family, and lives in the City of Alameda. I re- ferred to this beautiful city as being a town, in the notice of ex-Judge Way- mire. It developed into a city after I commenced the writing of these chapters. There is James V. Coffey, the admirable Judge, who comprehends within himself nearly all the qualities that go to make up that solemn yet beautiful character. Having impressed his mind on the legislation of the State, while the head of the San Francisco delegation in the Assembly, he has since so crowned the bench with honor as to establish this as his peculiar station. "Friend, go up higher !" is the general voice. I ask the reader to look back to page 196, and read a brief quotation from remarks on Judge Shafter by Rev. Mr. Stebbins. That the description fits Judge Coffey, too, especially the last fifteen words, can be testified to by a great cloud of witnesses. And this Judge seems to learn by heart every one with whom he is called to deal, possessing so deep an insight into human character that he might be called the Professor Fowler of the bench, although he does not need such close contact as the latter exacts with his human subjects. Nearly all of Judge Coffey's period on the bench has been passed in the Probate department of the Superior Court of San Francisco. A large volume of his probate decisions has just been published, reported by Timothy J. Lyons and Edmund Tauszky. The Judge is a bachelor, a native of New York City, came to California in 1852, and is now 41 years of age. BENCH AND BAR IN CALIFORNIA. 299 George R. B. Hayes, whose masterly conduct of the plaintiffs case in Colton vs. Stanford, et al., 1884-85, won the admiration of the entire bar, is a native of Belfast, Ireland, and was born May 22, 1847. He was educated at Chichester Academy in that city, and came to California in August 1863; admitted to practice in our Supreme Court April 5, 1869 ; and has been en- gaged in a general practice ever since, excepting a period of three years dur- ing which he was absent from the State. He was a member of the Assem- bly from San Francisco at the session of 1 869-' 70, when he was a member of the judiciary committee and chairman of the committee on military affairs. He was one of the Fifteen Freeholders elected on November 2, 1886, and who framed a new charter for San Francisco, which instrument was rejected at the polls. For some years past he has been one of the most active and prosperous practitioners at the San Francisco bar. He has long been asso- ciated in business with John A. Stanly, once County Judge of San Fran- cisco, and Thos. B. Stoney, once County Judge of Napa. He qualified him- self for the bar in the law office of his uncle, the late William Hayes. The transition seems natural, from Mr. Hayes to his bosom friend, Mr. William M. Pierson. When, a good while ago now, the attorneys of all the San Francisco banks united in a written opinion that the Bank Commis- sioners of the State were not vested with power to examine such banks as came strictly in the commercial class, Mr. Pierson led them into a discovery of their error. See the case of Wells, Fargo & Co. vs. E. J. Coleman, et. al. 53 Cal., 416, in which Mr. Pierson appeared for the State in the place and at the instance of the Attorney-General. Mr. Pierson was born at Cincinnati, Ohio, on February 3, 1842, and is a lineal descendant of Aneke Jans, the Trinity church [N. Y.] grantor. He arrived in California on Independence Day, 1852, studied law in the offices of Nathaniel Bennett, Annis Merrill and Henry H. Haight ; was admitted to practice in April, 1862, after examination, and at the age of twenty years, under a special act of the legislature authorizing it, and practiced in partner- ship with Mr. Haight until the latter became Governor of the State in De- cember, 1867. He was a State Senator from San Francisco, 1875-1878. He introduced a bill limiting the grounds of divorce to adultery only, which was not passed. Another bill of his to compel newspaper proprietors to retract false and defamatory articles, passed the Senate by 25 to io, on March 13, 1876, Donovan, Edgerton, Haymond, Hilborn, L,aine, Rogers and Shirley being among those voting aye, and Bartlett, Howe and Roach among the noes. This bill was indefinitely postponed in the Assembly, on the recom- mendation of the judiciary committee, John R. McConnell, chairman. Mr. Pierson has been very successful in the practice and enjoys a considerable fortune, his own accumulation. 3 BENCH AND BAR IN CALIFORNIA. John Garber, Harry I. Thornton, and Thomas B. Bishop, bom respectively in Virginia, Alabama, and Massachusetts, will have large atten- tion from me if I ever come back to my present theme. These gentlemen have been associated together in law practice ever since A. D. 1880. They are all of one political faith, and their political foeman, John Currey, who has been Chief Justice of our Supreme Court, regards this law firm as the strongest in the State. My notes show that Judge Currey so expressed himself to me on January 16, 1883. Well, the firm certainly has not lost strength since then. Captain T. E. K. Cormac of San Francisco, is another whose rare good fortune in practice has known no retiring ebb since its first flow in 1880. The Captain was born in the British Isles, and is the attorney for the British Consulate in San Francisco. He was a cadet in the Naval Academy near Trieste, and afterwards served for some years in the Austro-Hungarian army, as a lieutenant. He was admitted to the bar in Boston, Massachusetts, and practiced there a few years before removing to California. For four years — 1883-1887 — he was one of the attorneys of the Public Administrator of San Francisco, Hon. P. A. Roach. He owns a fine home in Sausalito, and valuable timber lands in Mendocino County. The Captain is a bachelor, a cultured, traveled man, and as judicious a critic and as liberal a patron of art as was the late Joseph W. Winans. His age is 44 years. Mr. John C. Hall and Mr. Arthur Rodgers compose a San Fran- cisco law firm that has had an exceptionally large and lucrative practice ever since it was formed. Mr. Rodgers was the first graduate of the Univer- sity of California, to become a regent of that flourishing institution of learning. He was legal adviser of the late Governor Washington Bartlett, and is one of the executors of the latter' s will. He was born in Tennessee in August, 1848, and came to- California in 1864. Mr. Hall was born in Wisconsin, Feb. 2, 1847, was admitted to the bar of the Supreme Court of Minnesota, in March, 1867, and came to California in October, 1871. Before settling in San Francisco, he passed a year in Plumas County. I have this incident of his brief practice there: It occurred on a trial in a Justice's Court in Indian Valley, Plumas County, before a jury composed mainly of Germans, of little education. The opposing counsel had thought proper to air his learning and had treated his illiterate hearers to much I^atin. Mr. Hall, replying, rolled off sentence after sentence in German, using that tongue exclusively. His adversary stopped him and appealed to the statute which prescribed that court proceedings should be conducted in English. Mr. Hall changed his speech to English, with the excuse that the other attorney had seen fit to speak in a dead tongue, and should not object to being answered in a live one. His object was attained — the jury took the side of the tongue they understood. BENCH AND BAR IN CALIFORNIA. 3OI Some of the lawyers who in boyhood, before i860, attended the Sacra- mento High School, will also furnish most interesting subjects for notice in the by-and-by. A few are named on page 93. William S. Wood is of this number. He was a strong and eloquent debater even then and his success in life was generally predicted. He acquired a fortune at the bar in Virginia City, Nevada, and has had a large practice in San Francisco since 1879- Augtjste Comte, after representing Sacramento in the Assembly and in the Senate, turned away from the law and followed merchandizing for several years. But he long ago returned to the profession, and ever since has had a large practice. He is a graduate of Harvard. Joseph M. Nougues, who was City Attorney of San Francisco in 1870-71, has since continuously maintained a lucrative law business; in addition to which, he has of late years been occupied in the development of a gold mine owned by him in El Dorado County. This mine was, from 1851 to 1855, the joint property of Mr. Nougues' father and brother, and Col. E. D. Baker. Mr. Nougues himself became the owner and resumed its development after work had been suspended for some thirty years. It is yielding largely of the precious metal. Mr. T. C. Van Ness, who has taken a very prominent place at our bar, and who leads all others in the line of insurance cases, inherited like McAllis- ter, a name distinguished in bar annals. His father was an early time Mayor of San Francisco, and his grandfather was Governor and Chief Justice of Vermont, and U. S. Minister to Spain. Mr. Van Ness himself was born in New Orleans, L,a., in 1847, came to San Francisco in 1855, (his father having arrived in 1850), and is a graduate of the Santa Clara College. His course of reading for the bar was pursued privately at home, as outlined for him by Judge James D. Thornton. He has practiced continuously since his ad- mission to the bar of the Supreme Court, in July, 1879. While he has had peculiar and unbroken success in insurance cases, his practice is general, ex- cept that he avoids criminal business. A sister of Mr. Van Ness is the wife of Hon. Frank McCoppin. Eugene N. Deuprey, who has long been an active practitioner at the San Francisco bar and who has won great reputation in the conduct of criminal cases and contests in probate, displays equal ability in all other branches of practice. Few, if any of our bar leaders possess a more vigorous intellect than this gentleman, and we have no more effective speaker, either in Court or before the masses. Mr. Deuprey constantly exhibits an excep- tional delight in the profession, especially in the trial of hard-fought causes. He is one of the youngest of our bar leaders, having been born in Louisiana in 1850. 302 BENCH AND BAR IN CAL,Ii?ORNIA. Lansing B. Mizner, of Benicia, is, I believe, the oldest member of the bar in the State north of San Francisco, and has been in general practice since 1850. On the rejection of the Mexican grant to the Soscol rancho, the people of Benicia were left without title to their lands and houses. Mr. Mizner at once set about correcting the trouble and prepared a bill which passed Congress, donating all the land in the town to the parties in posses- sion. As State Senator he also secured the necessary legislation to enforce the national laws, and took several cases which arose on the construction of those laws to the Supreme Court, and was successful in all of them. He has been connected with all the more important litigation arising in Solano and Contra Costa counties for twenty years past. In 1866 he was admitted to the bar of the United States Supreme Court. Mr. Mizner was born in Illinois, Dec. 5, 1825; was educated at Shurtleff College at Alton, in that State; passed four years, 1839-1843, in New Granada, being attached to the American legation; and served through the Mexican war as a soldier in the American army. He is a California pioneer. Standing over six feet high, of large, sinewy and symmetrical frame, of striking countenance and looking a decade younger than his real years, he is personally one of the most imposing figures at the California bar. His continuous success and the high standing he has maintained in one commu- nity for a generation, testify amply to his great strength and ability as a lawyer, and his excellence as a man. He has a large fortune, of which a good part lies in San Francisco, to which city he repairs every few days. Hon. Wileiam M. Stewart, United States Senator from the State of Nevada, was, during two considerable and widely separated periods, a prominent member of the California bar — in the early years, in the northern mines, and latterly in San Francisco. He has displayed remarkable and unbroken vigor of both body and mind, through a long and active career. He was born in New York in 1827, graduated from Yale College in 1849, and in that year came to California. Reserving him, also, for future notice, I will only tell this story of him now, which I had many years ago from his brother-in-law, Hon. W. W. Foote: Dr. Samuel Merritt, of Oakland, having law business in Virginia City, went there and retained Mr. Stewart. He was stating his case, when he was asked if he had a witness to some alleged fact. He answered "Yes." Proceeding further, he was again asked if he had a witness to prove something else. Saying yes, he resumed, and making another statement, Mr. Stewart a third time inquired "Have you got a witness to prove that ?" He answered: "No." "Then go right out and get one/" said the lawyer. I want to end with another story, and the following looks up smiling from a mass of like material on my table. They tell it on Horace W. BENCH AND BAR IN CALIFORNIA. 303 Carpentier, one of our oldest and richest lawyers. To appreciate it, one must know that Mr. Carpentier is a large landowner and has been a party to many suits involving the title to extensive tracts of territory. A settler in a southern county of California who obtained a government patent, said he was not yet satisfied, but would perfect his title. Coming to San Francisco he called on Mr. Carpentier and offered him $100 for his deed of the same land. "I don't own it," said Carpentier, " I have no land in that county." "But you may have a claim to it some day," said the settler, "and I am willing to pay you $100 for your bargain and sale deed now." Carpentier took the mone}^ and executed the . desired conveyance. ' 'Thank you," said the settler, "now I am safe." Another ? Verv well. Richard H. Daly, of Mariposa, (he had been an alcalde, and they called him Judge), was an eccentric and erratic but most interesting character — one of those anomalous souls whose amusing aptitudes enliven the annals of our early bar. He once defended a man charged with stealing a horse, and he aimed at proving an alibi. A certain man, who was not above suspicion, testified strongly against the prisoner. Daly determined to ' ' break him down, ' ' if possible. On cross-examining the witness, he asked : You are a vaquero ? Answer — Yes. A native Californian? Yes. Very fond of riding mustangs ? Yes. Sleep in the saddle ? Yes. Throw the lasso ? Yes. Wear spurs ? Yes. Smoke cigarettes ? Yes. Blow the smoke through your nose ? Yes. Stand aside, said Daly ; you'd steal a horse anytime. And the witness stood aside. Of course Judge Daly cleared his man. Such stories are not told unless they speak also of happy results. IN DKX. Addison, Gen. John E. — The Field-Moore Hostilities. Aiken, Charles — Anecdotes of Alexander, B. F. — Notice of Alexander, D. E. — Allusion to Alexander, Frank A. — Allusion to Alexander, John K. — Chapter XVII Letter to Leading Citizens A Jury Charge ..... American Saw Company — Litigation with N. W. Spaulding Anderson John — Allusions to ... Anderson, Alexander — Allusions to Andros, Milton — Allusions to ... . Archy, the Negro Slave — Case of ... Armstrong, John W. — Allusion to Argenti, Metcalf vs. — Reference to case Ashbury, Monroe — The Stanly-Otis Controversy Further reference ..... Ayer, Dr. Washington — Allusion to Aylette. Dr. Wm. D. — Surgeon in Broderick-Terry Duel Babcock, Wm. F.— Case of Alfred Moulin Baker, Edward D.— Chapter I . . . Judge Baldwin's Banter First Meeting With Cadwalader Allusion to Forest Hill Speech Political defeat in 1859 Wager with Gov. Low U. S. Senator from Oregon Love of the Beautiful The Snyder Embezzlement Case The Cora Murder Case Extract from American Theater Speech Stirring Words of Tho. Starr King The Peck-Palmer Bribery Baldwin, Alex. W.— Judge McKinstry's Tribute . Baldwin, Drury P.— The Field-Moore Trouble Baldwin, Lloyd— In Local Option Case Baldwin, Joseph G.— Chapter XX. Judge Field's Tribute Story on Judge S. C. Hastings Pleasantry with E. D. Baker Anecdotes Further reference Barbour, Wm. T.— Duel With Judge Field Barnes, William H.— Allusion to 158 133-134 224 224 224 221-22S 222 225-228 235-238 69. 86 83. 86 127. 160. 191. 231. 1S7 277 221 25S 171 182 93 288 132 13-20 13 13 15 15 16 16 16 17 17 iS 20 102 274 157 34 270-280 270 251 13 277-280 247. 293 ■ 154-156 39 16. INDEX. Barnes, Wm, H. L. — References to Barstow, Alfred — A Jury of Lawyers Bates, Henry, State Treasurer, Impeachment Beard, E. L. — Strange Reunion with Lockwood Beideman, J. C. — Allusion to Belcher, Isaac S. — Early Marysville Bar Belcher, Wm. C— Early Marysville Bar Belknap, D. P. — Allusion to Bell, Samuel B.— Baker's real forte Bellows, Rev. Dr. H. W. — Reference to Vermont Benham, Calhoun — Terry's Second in Duel with Broderick Further reference Benjamin/ Judah P. — In New Almaden Mine Case Bennett, Nathaniel — References to . 125. 15 Bergin, Thomas I. — Allusion to Bidwell, John — Allusion to Bigler, John ..... Billings, Frederick — Under Randolph's Fire Bishop, Thomas B. — References to Black, Jeremiah S. — Quoted on Limantour case Further reference Black Will Case — Reference to Blake, M. C— References to Boggs, Gov. L,. W. — Notice of Bonte, J. H. C— J. Mc M. Shafter in Argument Booth, Newton — Portrait of Lockwood Further interesting references Botts, Chas. T. — References to Bowie, G. W. — Reference to Bowman, J. F. — Shakespeare or Bacon? Brannan, Samuel, in 1850 Broderick, David C. — Case of his will Peck-Palmer Bribery Mattel- Bears a Challenge to B. F. Moore Saves Judge Field's Life Relations With Judge Field The Famous Duel With Judge Terry Brooks, Samuel H. — Field Counselor in Broderick-Terry Duel Brown, David Paul — A hint to Col. Hoge Bryan, Chas. H.— References to ... Buckner, Stanton — References and Anecdotes Bulkhead Bill, The ..... Burdell, Dr. Galen — Allusion to Burnett, Peter H. — Notice of Further reference Butler, Benjamin F.— Counsel for the State of California Byrne, Henry H.— Chapter VI Prosecution of Laura Fair Bouts with Foote and Baker Marriage with Matilda Heron 133- 2. 159. 243. • 173- 179- 237 134 107 257 35* 150 150 296 19 191 28S 106 263 • 245. 262. 296 245 109 102. 106 . 265 -267 245- 300 33 no 204 3°- 136 242 206 -207 260 5 a (2). 82. 221 109. 143 106 36 100 49 102 157 158 1 57-8 287 -291 288 43 102. 149 7 1--72 35^-35* -169 204 87-91 159 51 55-65 55-56 58 • 59- 60 61 INDEX. iii Byrne, Henry H. — Ludicrous Episode in a Murder Case . . 139 Byrne, Lafayette M. — References to . 56. 5 g Cadwalader, George — First Meeting With E. D. Baker 13 Further reference . . 296 Campbell, Alexander — Chapter XII 123-129 Contest over Office of County Judge 124 Unparalleled Scene in Court ^25 Notable Cases . 126-127 Further reference . . , 204 Capital of the State — Legislative History . 100-102 Carpenter, Matthew H. — Allusion to 294 Carpentier, E. R. — Takes Harry Byrne's Estate . 56. 65 Carpentier, Horace W.— A Story of . 302 Carr, Jesse D. — References to . . . 47, 292 Casserly, Eugene — References to . 33. 112. 113. 121. 130. 264. 267. 296 Castillero Andres — New Almaden Mine Case . . . 262-263 Catholic Church, The Pious Fund of 115-119 Catlin, A. P.— Chapter X. . 97-m Trial of the "Hounds" . 9 3 Squatter Riots of 1850 . . 99 State Capital History . . . 100-102 The Peck-Palmer Bribery Matter . . 102-105 Impeachment of State Treasurer Bates . . 107-109 Chinese Question — Views of Henry E. Highton 171 Position of Federal Judges . 74~75 Churchill, Clark — Allusion to 36 "City Slip" Litigation . 29 Civil Fund, The 262 Civil Law, The— Displaced in California . 262 Clarke, H. K. W. — Reference to . . . 169 Clark, Robert C. — References to 106. 220. 221 Clark, William H. — Contest with Judge Campbell 124 Clay, Henry — Judge Baldwin's estimate . 271 Coffey, James V. — Notice of . . 298 Further reference . 237 Coffroth, James W. — Reference to 296 College of California — Allusion to . 200 Colton, David D. — Broderick's second in Duel with Terry 288 Colton vs. Stanford — Allusion to Case . . 299 Common Law, The — Adoption in 1850 . . 262 Comte, August — Notice of 301 Further reference . 93 Cook, Elisha— Defense of Mrs. Fair . , 127 Further reference . . . 186. 296 Coolidge, J. A. — Kalloch Impeachment Case . 176 Cope, W. W.— The Sunday Law of 1861 . 160 Further reference .... 232. 245 Cora, Charles— Col. Baker's Defense of 17-18 Cormac, T. E. K.— Notice of 300 Cornwall, P. B.— In our first legislature 292 LV INDEX. Cox, Rev. H. — Reference to Cox, J. B. — Litigation with Chas. McLaughlin Crabbe, Henry A. — Randolph's Pathetic Allusion Crane, John— The Bulkhead Bill of i860 Crittenden, A. P.— Murder Trial of Mrs. Pair Further references Cunningham, Kittleman vs. — Case of Currey, John — References to Opinion of Garber, Thornton & Bishop Curtis, N. Greene — Trial of Mrs. Fair Daingerfield, Wm. P. — Reference to Daly, R. H. — Anecdote of Dame, Timothy — Sale of San Jose Railroad Darwin, Chas. Ben — Reference to Davis, Horace — Reference to Davis, Jefferson — Reference to Dawson, Rev. T. M.— Case of Delmas, D. M. — Notice of . Further references Del Monte Hotel Fire of 1887 De Long, Chas. E. — Allusion to Denver, Gen. James W. — Reference to Deuprey, Eugene N. — Notice of Further reference .... Dewey, Squire P. — Great Suit Against Him Dillon, Judge Jno. F. — Judge Field's Decisions Doble, Abner — Reference to Donahue, Peter — References to Doughty, Rev. John — Once a Lawyer Downey, John G. — Veto of the Bulkhead' Bill Doyle, Emmet — Allusions to Doyle, John T— Chapter XI. The Price-Dewey Litigation "Pious Fund of the Californias" Anecdotes of . Further reference Duel — Judges Field and Barbour Duel— D. C. Broderick and D. S. Terry Duel — Judge Field's Allusion to Broderick and Terry Duel— Judge Rearden's Allusion to Broderick and Terry Duel— Judge Field's Challenge to B. F. Moore Dunn, Francis J.- — Anecdotes of Durant, Prof. Henry — Allusion to . Durkee, John L. — Vigilance Committee of 1856 . Dwindle, John W.— Judge Shafter's Legal Opinions Further reference )winelle, Samuel H. — References to Sagan, Col. C. P. — Relations with Jno. T. Doyle Saton, Ira A.— The Field-Turner Trouble 46. 230. 284. 285 182 186-187 268 35^ 55-56 127. 262 264-267 232. 296 300 127 169 242 120 176 295 247 179-180 • 294-295 186. 225 224-225 150 106 301 182 "3 160 236 120 230 35^ 112. 122 112-122 "3-II5 115-119 120-121 163 154-156 287-291 158 285 157 96. 278 200 282 195-196 206 [36. 293 121 . 152 INDEX. , Edgerton, Henry— Baker's Forest Hill Speech Appreciation of D. L. Belmas Further reference .... Edmunds, Senator from Vermont, reference to Edwards, Philip L — Allusion to Ellis, E. F. W. — Association with Lorenzo Sawyer Further reference Eloquence— Judge Baldwin's Observations Estee, M. M. — Reference to Evans, O. P. — Reference to Fair, Mrs. Laura A. — Trial of Further reference Fairfax, Charles S.— The Field-Barbour Duel Fawcett, Eugene — Interesting case of Felton, John B.— Chapter III The City Slip Litigation The case of Limantour Argument in Local Option Case The Bulkhead, Bill Anecdotes of ... Ferguson, William I. — Anathemas Against Wilson Flint Field, Stephen J.— Chapter XIV . Trouble with Judge Turner Legislative Service Duel with Judge Barbour Relations with D. C. Broderick Judicial View of Sunday Laws Escapes an Infernal Machine Further references . 74. 82. m Field vs. Seabury — Allusion to case of " Fifty-two, Forty or Fight " Finch, James W. — Letter of Judge Alexander Flint, Wilson — Defeats Governor Foote's Ambition " Flush Times in Alabama " — Allusions to Foote, Henry S. — References to Foote, W. W.— In the Jury Box Forbes, A. B. — Case of Alfred Moulin Freelon, Thos. W. — Interesting references Freeman, A. C. — Association with Judge Alexander Fremont, John C. —Political History " Gag Law, The " — Allusion to law so-called Galpin, Philip G. — Associated with Jno. T. Doyle Garber, John — References to ... Garber, Thornton & Bishop — References . Garland, A. H. — U. S. Attorney-General — Old case of Garfield Monument — Oration of H. E. Highton . Gates, Dr. H. S. — Connection with the Bulkhead Bill Geary, Jno. W. — Political History . The Sacramento Riots of 1850 202. 203 132- 231. 232. 17- 35^- 35^- 59- "5 295 128 264 106 71 72 273 221 245 55-56 127 154-156 206-207 28-37 29 31-33 34-35 35^-35^ 35«-35^ 82 141-164 147-153 147- 148 154-156 157 159-160 162 270. 279 260 40-41 222 81-82 271 59- 81 12S 132 139 222 81 1,81 113 47. 300 293. 300 162 . 187-190 35^ 81. 89 ICO 128. VI INDEX. Goodwin, Jessie O. — References to . Gorham, Geo. C. — Case of Alfred Moulin . Clerk of Judge Field Governors of California .... Gregory, Hon. D. S. — Defeat by Judge Alexander Green, Thos. J. — "The Legislature of a Thousand Drinks " Guy, Abel — Connection with the Bulkhead Bill Gwin, William M.— Trial of the "Hounds" The Peck-Palmer Bribery Matter Further reference Haggin, James B. — Notice and Story Haggin vs. Tevis — Notice and Story Haight, H. H.— Case of Rev. T. M. Dawson Haggin, Lux vs. — Great Water Rights Case Hall, John C. — Notice and Story Halleck, Peachy, Billings and Park Hambleton, J. D. — Reference to Hamilton, Alexander — Baldwin's Tribute Hamilton, Rev. L. — Observations on O. L. Shatter Hammond, Dr. William — The Broderick-Terry Duel Hammond, Major R. P. — Allusion to Handel and Haydn Society of San Francisco Harding, Samuel C. — A Jury of Lawyers „ Hardy Impeachment Trial — Reference to . Hart vs. Burnett— References to great case of Hartson, Chancellor — Reference to Haskell, Leonidas — The Broderick-Terry Duel Hastings, C. F. D.— Reference to . Hastings, Robert P. — Dean of Law College Hastings, S. C— Chapter XVIII Career in Iowa The Hastings Law College Relations with Haggin and Tevis Haun, Henry P. — Extraordinary Court Scene Hawes, Horace — Association with Lockwood Hayes, Geo. R. B. — Notice of Hayes, John — Assault of Dennis Kearney . Hayes, Col. Thomas— The Terry-Broderick Duel Hayes., William — References to Herbert, Philip T.— Reference to . Hermann, Samuel — Reference to Heron, Matilda — Pathetic Story of . Hetherington, Joseph — Scene on Murder Trial -Heydenfeldt, Solomon— Chapter VIII Higby, William — Allusion to Highton, Edward R. — Notice of Further reference Highton, Henry E.— Chapter XV Kalloch Impeachment Case 149- 151- *5° 132 146 8S 222 262 350? 98 102 297 247. 250. 251 250 179-180 293 300 192 169 273 195- 196 288 288 207 134 128. 202 270. 275. 293 95 2S9 244 245 . 240-253 . 240-242 244. 245 247. 250 151-152 258 299 182-184 288 193. 299 106 27 6i-64 139 79-86 128 168 173 165-190 J73-I79 INDEX. Highton, Henry E— Case of Rev. T. M. Dawson Notable Defense of John Hayes Garfield Oration Remarks on Death of Judge Shafter Hittell, T. H.— Fee in Lick Trust Case Hoffman, Ogden— Chinese Question Further reference Hoe, R. M.— The Spaulding Patent Cases Hoge, Joseph, P.— Chapter IV Record in Congress Humorous Stories Further References Holmes, Isaac E.— Case of Metcalf vs. Argenti Holmes, Oliver Wendell— Allusion to H. H. Reid's Tribute Hope, the Burglar — Amusing Episode Hopkins, S. A.— Stabbed by Judge Terry . "Hounds," The— Reference to trial of Howard, Chas. Webb— Allusion to . Howard, J. G. — Tribute to J. G. Baldwin . Howard, W. D. M.— Squatter Riots of 1850 Hubert, Chas. — Controversy with Judge Jno. A. Stanly Hyer, John G. — Association with Joseph W. Winans Impeachment Cases: State Treasurer, Henry Bates District Judge, Jas. H. Hardy District Judge, Wm. R. Turner Mayor Isaac S. Kalloch Infernal Machine Sent to Judge Field Ingalls, Hon. J. J. of Kansas — The Chinese Question Inge, S. W. — Defeats Baldwin for Congress Jackson, Andrew R. — Reference to James, Geo. F. — His Irish Witness Jarboe, Jno. R. — Case of Porter vs. Woodward Jefferson, Thomas — Judge Baldwin's Tribute Jessup, Jonathan A. — True name of R. A. Lockwood Johnson, Chapman — Allusion to the great Virginian Johnson, Gov. J. Neely — References to Johnson, Reverdy — New Almaden Case Kalloch, Isaac M. — Trial for Murder Kalloch, Mayor Isaac S. — Impeachment Trial Kearney, Dennis — The Kalloch Impeachment Labor Troubles of '78-'8o Piatt's Hall Meeting, March, '78. Interesting Habeas Corpus Case Keyes, Gen. E. D. — The Price-Dewey Litigation King, T. Butler — Early political History King, Thomas Starr — Stirring Words at Baker's Burial Kittleman vs. Cunningham, Case of vil . 179-180 . 181-184 187-190 . 198-200 35« 74 J 32- 133- 140. 186. 187. 296 237 38-44 39-41 43 245- 295 259 >ute . . . 298' 128 • ' • • 283 98 201 272 100 171 296 107 128 153 • 173-179 162 171 271 24 139 48 273 255 271 S8. 106. 159. 282 263 184 • 1 73-1 79 • 173-179 . 180-181 181. 182 291. 293 • "3-II5 . Si. 258 . 16. 20 . 264-267 vm INDEX. Know Nothing Party — Politics in 1856 Knowles vs. Inches — Baldwin's Witty Opinion Lake, Delos— Witty Remark About McAllister Further Reference . 132. 162. 172. 173. 187 Lancaster, Geo. A. — Anecdote of Chief Justice Searls Latham, Milton S. — References to League of Freedom — Opposed by Lake and Highton Further reference Leavenworth, Dr. T. M.— Trial of the "Hounds" "Legislature of a Thousand Drinks" Lent, William M. — Buys Haggin's Mining Stock Lick, James — Deed of Trust Broken Limantour, J. Y. — Extraordinary Case of . Local Option Case of 1874 Lockwood, R. A.— Chapter XIX Strange Career in the Fast Stranger Still in the West Pictured by Hon. Newton Booth Louderback, Judge Davis — Acquittal of John Hayes Love, John Lord — Case of Clark vs. Reese Further reference Low, Gov. F. F.-— Wager with Col. Baker , Lux vs. Haggin— Reference to Great Water Rights Case Lyons, Henry A. — Allusions to Lyons, Timothy J. — Judge Coffey's Reports Machin, T. N. — Reference to Mahoney, David — Sued by his Attorney Marsh, A. J.— His Opinion of S. M. Wilson Marshall, F. C. — Reference to Marysville Bar Marysville, City of— How it came by its Name Marysville, Farly Bar of Masonry, — Extract from Judge Lorenzo Sawyer's Oration Mastick, F. B. — Association with J. McM. Shafter Maynard, Lafayette — The Bulkhead Bill . Mercantile Library of San Francisco — Its Dedication Merritt,-Dr. Samuel — Anecdote of Wm. M. Stewart Merritt, Samuel A. — Declines to bear Judge Field's Challenge Metcalf vs. Argenti — Reference to Case Mesick, Richard S. — Farly Marysville Bar Middleton, John — Case of Alfred Moulin Mills, D. O. —Allusion to Mitchell, Henry K. — Early Marysville Bar Mizner, Lansing B— Notice of Monson, A. C. — District Judge at Sacramento Moore, B. F. — Challenged by Judge Field Moore, Geo. R. — Association with Judge Alexander Mdrrison, Robt. F.— Case of Alfred Moulin , Morrison, Roderick N. — Association with Lorenzo Sawyer Mortgage Tax Case — View of McKinstry and Felton 245- 264. 99- 34- 35- 86. 81 276-277 26 267. 293 96 106. 296 172 218 98 262 248 35« 31 292. 293 254-260 254-257 257-260 260 183 ' 126 57- 16 293 125. 243 298 95 27 48 150 , 144 150 75 193 169., , 170 35^- 37 302 157 258 149 133 '47 150 302 13- 7i J 57 221 132 72 34 INDEX. Moss, J. Mora—The Bulkhead Bill Mott, Gordon N.— The Field-Barbour Duel Moulin, Alfred. — Case of Mulford, Samuel B.— The Field-Turner Trouble . Murphy, B. D. — Association with D. M. Delmas . Murphy, Miss Clara A. — A Prize Loaf of Bread Murphy, D. J.— Trial of Mrs. Fair Further reference Murray, Hugh C— Notice of Further reference Myrick, M. H.— Black Will Case McAllister, Hall— Chapter II. Ancestry, etc Contrasted with Randolph E. D. Sawyer's Testimony Case of Tompkins vs. Mahoney Trial of "The Hounds" Further reference . . 126. 132. 169. McConnell, Jno. R. — References to . McCullough, Jno. G. — Reference to McDonald, Dr. R. H. — Across the Plains with Niles Searls McDougall, Jas. A. — Politics in 1854 Further reference McDougal, Gov. John — An Offended Grand Jury McFarland, T. B. — Defeats Niles Searls for District Judge McGowan, Ned — Unparalleled Occurrence in Court McKee, Samuel B. — References to . McKibben, Joseph C. — The Broderick-Terry Duel -s/McKinstry, Elisha W.— Chapter XXII Remarks on Death of O. L. Shafter . Remarks on Death of A. W. Baldwin An Estimate by Henry H. Reid Further reference .... McLaughlin, Chas. — Sale of San Jose Railroad Litigation with J. B. Cox .... "Natoma" — Meaning of the Word . Newhall, H. M. — Sale'of San Jose Railroad New Almaden Quicksilver Mine — Contest Over Nightingale, John— The Bulkhead Bill Niles, Addison C— Relations with Judge Searls Nitro-Glycerine Explosion of 1866 . Norton, Edward — Anecdote of Further reference Nougues, Joseph M. — Notice of Further reference ..... Nourse, Geo. A.— Case of Sherman vs. Buick Ivanhoe-Keystone Mining Case Nudd, Asa D.— Anecdote of Judge Searls Nunan, Edward— The Piatt's Hall Meeting of March, 1878 35^ 154. 156 132 151- 152 294 204. 205 127 134- 136. 176 86 ■ 83. 159 204 20-27 20 23 25 27 99 84. 185. [87. 225. 237 7i- 292. 296 193 92 106 254- 296 125 94 125 220. 293 288 . 29: -294 200 '274 29; -294 132 120 186. 187 100 120 262. 263. 269 35^ 96 52 85 200. 232 301 93 5i 51 96 182. 183 INDEX. Orr, John K., of Orr & Atkins — Allusion to Otis, James — Controversy, as Mayor, with County Judge Oregon Question — Col. Hoge's Record Stanly Palmer, Joseph C. — The Peck-Palmer Bribery Matter Further reference .... Palmer, Cook & Co. — Famous Old Banking'House Further reference .... Papy, J. J. — An Amusing Situation Park, Trenor W. — Relations with the Shafters Parker, Chas. H. — Association with J. McM. Shafter Parrott, John — Nitro-Glycerine Explosion of 1866 Parrott, Tiburcio — Case of, on Habeas Corpus Parsons, Levi— The Bulkhead Bill Patterson, W. H. — In Local Option Case Payne, Theodore — The Price-Dewey Litigation Paxton, John A. — Reference to Peachy, A. C. — New Almaden Mining Case Peck, Senator from Butte — Bribery Charges Perkins, Gov. Geo. C. — An Appointment of Niles Searls Perley, D. W — The Broderick-Terry Duel Pierson, William M.- — Notice of Pioche, Bayerque & Co.— The Bulkhead Bill "Pious Fund" of Catholic Church . Pixley, Frank M. — Association with Lorenzo Sawyer Pleasantries, A Chapter of . Polhemus, C. B. — Sale of San Jose Railroad Pomeroy, Prof. John Norton — Observations on Judge Field's Decisions Pratt, O. C. — Associated with H. E. Highton Prentiss, S. S. — Relations with Joseph G. Baldwin Price, Rodman M. — Litigation with Squire P. Dewey ■ Cause of Trouble to Judge Field Pringle, Edward J. — Refuses to Take Test Oath . Provines, R. R. — Reference to Case of Purdy, Samuel — Defeats D. S. Terry for Mayor of Stockton Quint, Leander — Trial of Mrs. Fair Ralston, J. H. — Defeat by Judge Field Randolph, Edmund— Chapter XIX The Great New Almaden Case Cross-Examination of Fred'k Billings Gen. Walker's Scheme of Empire Randolph of Roanoke— Picture by Judge Baldwin Rayle, P. W. S. — Interesting Ejectment Case Rearden, T. H. — Reflections on Broderick-Terry Duel Redding, Joseph D. — Reference to Redman, Joshua W. — Anecdote of . Reese, Michael — On Bond of Limantour Sued by the Government A Client of John B. Felton . 201 171 . 40 . 41 103 ■ 254 107. 108 193- 254. 259 27 192. 193 208 52 • 74 75 35^ 169 34 no -"5 99 263 102 94 284 299 169 "5 -119 72 130-140 120 160. 163 169 270. 271 "3 163 84 203. 293 282 127 159 261 -269 262 -264 265 -267 268 272 233 285 207 137 32 33 35« INDEX. . XI Reese, Michael — Impeached by Sam Ward Mrs. Clarke's Suit Against Reid, Henry H — Notice of An Estimate of Judge McKinstry Rhodes, A. L. — Reference to Richardson, U. S. Marshall — Killed by Cora Riley, Gen. B. — Provisional Governor in 1849 Riots in Sacramento, in 1850 Riots in San Francisco, in 1877 Roach, Philip A. — References to Roberts, E. W.— A Mining Case of 1851 Robinson, Chas. — Governor of Kansas — Wounded at Sacramento Robinson, C. P. — Reference to Robinson, Tod — Success and Defeat Surprises Baldwin Rodgers, Arthur — Notice of Ryland, C. T.— Relations with Gov. Burnett Further reference Sacramento: Bar Leaders in 1850 High School in Early Times Squatter Riots in 1850 State Capital History San Francisco: First Water Front Scheme The Bulkhead Bill of i860 The City Slip Litigation Riots of July, 1877 .... Santa Clara College, Reference to . Sanders, Col. Lewis — Relations with Prominent Men Sanderson, S. W.— The Local Option Case 34. 95. Further reference Sargent, Aaron A. — Early Nevada County Bar Sawyer, E. D. — Observation on McAllister Further reference Sawyer, Lorenzo — Chapter VII The Strange Death of Pat Berry First Meeting with Lockwood Position on the Chinese Question Stanford University: Address Further reference Sawyer, W. D. — Anecdote of Judge Blake Scannell, David— Legacy from Harry Byrne Scott, Hon. Chas. L. — Early Employment at Campo Seco Scott, Edmund— The Price-Dewey Litigation Scripture, Henry D.— Associated with Jno. T. Doyle Searls, Niles— Chapter IX . Further reference ..... Seawell, J. M.— The Black Will Case Selover, A. A.— Subject of Baker's Invective Seward, Wm. H.— A. P. Catlin's Criticism 61. "5 126 297-298 293-294 134 17. 18 262 99 181 299. 300 70 99 82. 279 82 279 300 89 137 99 93 99 100-102 105 35^-35^-169 29 181 294 247 233 296 6S 25 185 66-78 68-69 73 74 76-78 234 136 57 93 "5 113 92-96 278 204 104 no 203 133 113 INDEX. Seward, Wm. H. — H. E. Highton's Compliment With Judge Hastings in Alaska Shafter, Jas. McMillan— Chapter XVI In Vermont and Wisconsin Life in California .... Clara Murphy's Loaf of Bread Portrait by Dr. Bonte Shafter, Oscar L.— Chapter XVI Lawyer and Judge .... Impressive Religious Views . Eulogium by H. E. Highton Eulogium by Judge McKinstry Further references Shakespeare Plays — Authorship Discussed Sharp, Solomon A. — Anecdotes of Sharpstein Jno. R. — Hastings Law College Shaw, William J. — Notice of Further reference .... Sherman vs. Buick — Federal and State Land Patents Sherreback, Peter— The Old-Time Syndico Skidmore, of Marin — Anecdote of Baldwin Sloss, Louis — Across the Plains with Judge Searls Smith, Geo. H. — Supreme Court Reports Smith, Isaac W. — The Railroad Commission Smith, Sidney V.— Black Will Case Snyder, Major J. R. — Baker's Defense of . Sole Trader Act — Author of ... Southard, J. B— Black Will Case . Spaulding, Nathan W. — Notice of the Inventor and his Patent Suits Spreckels, A. B.— Trial of . Spring Valley Water Company — A Disturbing Question Stanly, Edward — Tribute to Baker Judge Baldwin's Wit .... Stanly, John A. — Controversy with Mayor Otis Further references .... Stanford, Colton vs. — Allusion to case of . Stanford University— Judge Sawyer's Address at Palo Alto Stanton, Edwin M. — In New Almaden Case Stebbins, Rev. Horatio — Quoted Stevenson, Jonathan D. — Names our First Governor First Meeting with Judge Field Stewart, Hon. Wm. M. — Notice and Anecdote Stoneman, Geo. — Railroad Commission Stoney, Thos. P. — Association with Geo. R. B. Hayes Stovall, Chas A. — Case of the Slave Archy Strauss & Co., (Levi) — Patent Case Sunday Laws in California .... Sutter, John A. — References to Swan, T. M. — Reference to . Swezy, Gabriel N. — Early Marysville Bar . 85 170 246 201-208 201. 202 202-208 204-205 206-207 191-201 192-196 197-198 198-200 200 168. 233 36 131 245 296-297 170 50-51 265-267 279 92 223 "3 204 17 71 204 235-238 184 181 14 280 171 299 299 76-78 263. 264 195. 196 89 143 302 113 299 277 239 159. 160. 172 89. 144. 150 234 149 132. INDEX. Xlll Swift, John F. — Invokes Test Oath Act Against Gregory Yale Taliaferro, T. W.— A Police Court Episode Tauszky, Edmund— Judge Coffey's Reports Terry, David S.— Chapter XXI The Great Vigilance Committee Trouble with Senator Broderick The Great Duel Described Judge Field's Observation Further reference Test Oath Act — Lawyer's withdraw from Practice Tevis, Lloyd— Entertaining Recitals Thompson, Robert — Remark on these Sketches Thornton, Crittenden — Allusion to Thornton. Col. H. I. — Eureka-Richmond Case Further reference Thornton, Judge James D. — References to Tilford, Frank — -Association with Lockwood and Randolph Tilden, Samuel J. — Reference to S. M. Wilson's Eulogy Tompkins, Walter — Suit Against David Mahoney Townsend, J. B. — Anecdote of Judge Wheeler Turner, Judge Wm. R. — Disbars Stephen J. Field Turner, Vicessimus— Assaults Stephen J. Field Vanderbilt, Commodore — Opposes Walker in Nicaragua Vandewater, R. J. — Anecdote of Jno. T. Doyle Van Buren, Thos. B.— In our First Legislature Van Clief, Peter — Ivanhoe-Keystone Case Van Duzer, A. P. — Anecdote of Van Ness, Thos. C. — Notice of Further reference Verdenal, J. M. — Anecdote of Baker Vigilance Committee of 1851 Vigilance Committee of 1856 Virgin, Daniel W. — From Apron to Ermine Walker, Gen. William— The Great Filibuster Wallace, W. C— Meets Defeat with McKinstry Wallace, Wm. T.— Remarks on Death of Byrne Estimate of Hugh C. Murray Association with Gov. Burnett Further reference Ward, Sam, the Celebrated— References to Washington, B. F.— Made a Colonel by Gen. A. M. Winn Waterman, F. H.— Association with J. Mc M. Shafter Waymire, Jas. A.— Chapter XVII Army Record . On the Bench Important Cases at the Bar The Veterans Home Weller, John B.— Trial of Samuel Gallagher Elected U. S. Senator 247. 293- 84 139 298 281-291 282-283 284-285 287-291 158 159 84 251 141 288 53 300 301 258 54 27 132 147. 150. 153 158 26S 120 292 5i 140 3 QI 220 16 259 . 282-283 93 . 150-268 292 57 87 89 296 163 38 208 209-220 211-215 218 218. 219 219-220 80 81 43- 114. 137- H5- 217. INDEX. lis, Alexander — Precarious Seat on Supreme Bench stmoreland, Chas. — Moves Judge Turner's Impeachment eaton, M. A.— Chapter XVII Early Struggles N. W. Spaulding's Great Invention Important Cases Further reference .... eeler, E. D. — Anecdotes and References itesides, N. E — Early Marysville Bar . itney, Geo. E. — Case of Alfred Moulin itney, Dr. J. D. — Acknowledgments to Judge Hastings ittaker and McKenzie, Hanging of Hams, Chas. H. S. — Association with Lorenzo Sawyer Peck-Palmer Bribery Case Further reference son, Mountford S. — Associated with Samuel M. Wilson son, Russell J. — Associated with Samuel M. Wilson son, Samuel M. — Chapter V . Association with other Bar Leaders . The Broderick Will Case Nitro-Glycerine Explosion of 1866 . Further References .... lans, Joseph W. — Suit Against Gen. Hardenberg The Memory of Felton .... The Bates Impeachment ... Further reference ..... in, Gen. A. M.— Makes a Colonel of B. F. Washington ad, William S.— Notice of 83 153 229-239 229 235-238 230-234 53 85. 131. 132. 150. 192. 193 in. 185. 232. 204 296, 179 150 132 252 259 73 103 194 46 46 45-54 45-46 49 52 245 13 36 109 300 38 301 2, Gregory — Refuses to take Test Oath Further reference .... riskie, Wm. M. — Foreman of a Jury of Lawyers 83. 296 135